Meaning and Scope

The Right to Life is universally recognised as the most fundamental of all human rights, as its denial renders all other rights meaningless. It is prominently enshrined in key international human rights instruments. Article 3 of the Universal Declaration of Human Rights (UDHR) simply states: "Everyone has the right to life, liberty and security of person." Article 6 of the International Covenant on Civil and Political Rights (ICCPR) provides a more detailed articulation of this right.

Right to physical existence

At its most basic level, the right to life guarantees the right to physical existence. It means that every human being has the inherent right not to be killed. This intrinsic value of human life is the foundation upon which the right is built. This right is considered inherent, belonging to individuals by virtue of their humanity, and is generally regarded as inalienable.

While the core meaning is about physical survival, the scope of the right has been interpreted more broadly over time by human rights bodies. It is not just about being alive but also about living in conditions that allow for a dignified existence. The UN Human Rights Committee (which monitors the ICCPR) has stated that the right to life concerns "the entitlement of every human being to be free from acts and omissions intended or expected to cause their unnatural or premature death".

Protection against arbitrary deprivation of life

Article 6(1) of the ICCPR states: "Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life." The crucial term here is "arbitrarily". This indicates that while the right is fundamental, deprivation of life might be permissible in *very limited and specific circumstances* defined by law, provided it is not arbitrary.

The concept of "arbitrary" deprivation goes beyond merely being unlawful under domestic law. It means a killing that is unjust, disproportionate, unreasonable, or not necessary in the circumstances. International law imposes strict conditions on any deprivation of life by the state, even where potentially permissible under domestic law.

The obligation to protect against arbitrary deprivation of life imposes both negative and positive duties on the state:

• Negative Obligation: The state and its agents (police, military, other officials) must refrain from intentionally or negligently taking life, except in the most exceptional circumstances permitted by law (such as the use of lethal force in self-defence or in lawful law enforcement operations, which must be strictly necessary and proportionate). Any use of force must comply with the principles of necessity and proportionality.
• Positive Obligation: The state must take active measures to prevent foreseeable threats to life, whether from state agents or private actors. This includes:
  • Enacting and enforcing laws that protect life (e.g., criminal laws against murder, laws regulating the use of force by law enforcement).
  • Taking preventative measures against known threats (e.g., protecting individuals at risk of violence, ensuring safety standards).
  • Investigating all deaths where the state's action or inaction may have been involved or where foul play is suspected, and ensuring accountability for unlawful killings.
  • Taking steps to create conditions that support life, such as access to essential healthcare and protection from environmental hazards, particularly for vulnerable populations (linking to economic and social rights).

For example, in India, the right to life guaranteed under Article 21 of the Constitution (which is interpreted in line with international standards like ICCPR Article 6) means that the police cannot arbitrarily kill suspects. If lethal force is used, it must be strictly necessary and proportionate to the threat. Furthermore, the state has a positive obligation to investigate all custodial deaths or deaths resulting from police encounters, ensuring accountability if the use of force was unlawful.

Capital Punishment and the Right to Life

The relationship between the right to life and capital punishment (the death penalty) is complex under the ICCPR. While many view the death penalty as the ultimate arbitrary deprivation of life, Article 6 of the ICCPR does not explicitly prohibit it for states that retain it. Instead, it subjects its application to extremely strict conditions, indicating a clear international trend towards its abolition.

Conditions for Applying Capital Punishment under Article 6 ICCPR

Article 6 sets out several conditions that states retaining capital punishment must comply with:

• Most Serious Crimes (Article 6(2)): The death penalty may be imposed only for the "most serious crimes" in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. The interpretation of "most serious crimes" is restrictive, generally limited to crimes involving intentional killing.
• Competent Court & Fair Trial (Article 6(2)): It can only be carried out pursuant to a final judgment rendered by a competent court. This implies that all fair trial guarantees under Article 14 ICCPR must be strictly observed, including the right to appeal.
• Amnesty, Pardon, Commutation (Article 6(4)): Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.
• Exclusions (Article 6(5)): Sentence of death shall not be imposed for crimes committed by persons below 18 years of age and shall not be carried out on pregnant women. The Human Rights Committee has also indicated that it should not be carried out on persons suffering from mental disabilities or those who have become insane.
• Abolition as a Goal (Article 6(6)): Nothing in Article 6 shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant. This clause expresses a clear preference for abolition as the ultimate goal.

The Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty, further strengthens the international stance. States ratifying this Protocol agree not to execute anyone within their jurisdiction, although some allow a reservation for wartime convictions for serious military crimes. India has not ratified the Second Optional Protocol.

In India, while capital punishment is retained, the Supreme Court has limited its application to the "rarest of rare" cases (*Bachan Singh v. State of Punjab, 1980*), where the crime is so brutal or heinous as to shock the conscience of the community. This judicial doctrine is, to some extent, an attempt to align with the international standard of "most serious crimes". Procedural safeguards, including the right to appeal up to the Supreme Court and the possibility of clemency petitions to the President or Governor, are available, reflecting aspects of Article 6(4) ICCPR.

Globally, there is a strong trend towards the abolition of capital punishment, both in law and in practice, reflecting an evolving understanding of the right to life and human dignity. Over two-thirds of countries have abolished the death penalty in law or practice.

Right to life in the context of armed conflict and state of emergency

The right to life is one of the core human rights that remains protected even in the most challenging circumstances, such as armed conflict or a state of emergency. Its application in these contexts demonstrates the robustness of international human rights law and its relationship with international humanitarian law.

Non-Derogable Nature during Emergencies

Article 4(2) of the ICCPR explicitly lists Article 6 (Right to Life) as a provision from which no derogation is permitted, even in times of public emergency which threatens the life of the nation. This means that the state's fundamental obligation not to arbitrarily deprive individuals of their life continues to apply, regardless of the severity of the emergency situation.

While a state might be permitted to suspend certain rights (like freedom of movement or assembly) during a declared emergency, it cannot arbitrarily kill its own citizens or others under its jurisdiction, even under the pretext of dealing with the emergency.

Application in Armed Conflict

As discussed earlier, IHRL and IHL apply concurrently during armed conflict. The right to life (IHRL) intersects significantly with IHL rules governing the conduct of hostilities, particularly the rules on the use of force and targeting.

• Use of Lethal Force: In the context of *hostilities*, IHL provides the specific rules (lex specialis) governing who may be lawfully targeted with lethal force (primarily combatants and persons directly participating in hostilities) and under what conditions (distinction, proportionality, precaution). A death resulting from military operations conducted in strict compliance with IHL is generally not considered an arbitrary deprivation of life under IHRL.
• Beyond Hostilities: State actions in an armed conflict that do not constitute direct participation in hostilities (e.g., law enforcement activities in areas under state control, treatment of detainees outside of combat) are primarily governed by IHRL rules on the use of force, which are more restrictive than IHL targeting rules. Lethal force by law enforcement must be strictly necessary and proportionate to save life, and less drastic means must be used first.
• Positive Obligations: Even during conflict, the state retains positive obligations under the right to life, such as:
  • Taking all feasible precautions to protect the civilian population from the effects of attacks (also an IHL rule).
  • Ensuring access to essential services (food, water, basic healthcare) for populations under its effective control, where possible.
  • Conducting prompt, impartial, and effective investigations into all deaths where there are allegations of arbitrary deprivation of life or violations of IHL.

The non-derogable nature of the prohibition on arbitrary deprivation of life means that certain acts, such as the killing of civilians not participating in hostilities, killing of prisoners of war or detainees, or extrajudicial executions by state agents, are prohibited under both IHRL and IHL and can amount to war crimes or crimes against humanity under international criminal law, in addition to triggering state responsibility.

In situations of internal conflict in India, actions by security forces are scrutinised under both domestic law (which incorporates principles aligning with IHRL) and, where applicable, IHL (depending on whether the situation reaches the threshold of an armed conflict). The right to life provides a constant fundamental standard against which the state's use of force and its actions affecting life must be measured.

Protection against Arbitrary Arrest and Detention

The Right to Liberty and Security of Person is a fundamental human right that protects individuals from unwarranted interference by the state with their freedom of movement and physical liberty. Article 3 of the Universal Declaration of Human Rights (UDHR) declares that everyone has this right, alongside the right to life. Article 9 of the International Covenant on Civil and Political Rights (ICCPR) provides a more detailed legal framework, stating in its first paragraph: "Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law."

The core of this right is the prohibition of arbitrary arrest and detention. Similar to the concept of "arbitrary" deprivation of life, "arbitrary" in the context of liberty means more than just 'illegal' or 'unlawful' under domestic law. It implies that the deprivation of liberty must not only be carried out in accordance with domestic law but also must be reasonable, necessary, and proportionate in the specific circumstances. It must not be inappropriate, unjust, unpredictable, or discriminatory.

Meaning of Arbitrary

According to the UN Human Rights Committee (monitoring the ICCPR), arbitrariness includes elements of inappropriateness, injustice, lack of predictability, and discrimination. Detention may be lawful under domestic law but still be arbitrary if, for instance, it is disproportionate to the purpose for which it is used, or if it is discriminatory. It also implies that any decision to deprive someone of liberty must be taken by a competent, independent, and impartial authority following fair procedures.

Lawfulness vs. Arbitrariness

Article 9(1) sets a two-pronged requirement: deprivation of liberty must be both (a) on grounds and in accordance with procedure established by law, AND (b) not arbitrary. Thus, compliance with domestic law is a necessary but not sufficient condition for lawful detention under international human rights law. The law itself must be compatible with the principles of predictability, reasonableness, and proportionality.

Examples of arbitrary detention could include:

• Detention without any legal basis or without following the procedures set by law.
• Detention for an indefinite period without review.
• Detention as a form of punishment for exercising fundamental rights (like freedom of expression or peaceful assembly).
• Detention that is excessively long or harsh given the alleged offense or purpose of detention.
• Detention based on discriminatory grounds.

In India, Article 22 of the Constitution provides safeguards against arbitrary arrest and detention. The judicial interpretation of 'procedure established by law' under Article 21 (which often interacts with Article 22) requiring the procedure to be 'fair, just, and reasonable' (as established in *Maneka Gandhi*), aligns with the international standard of 'not arbitrary' under Article 9 ICCPR. Protections under the Code of Criminal Procedure, 1973, such as the requirement to produce an arrested person before a magistrate within 24 hours, are mechanisms aimed at preventing arbitrary detention.

Right to be informed of reasons for arrest

A crucial safeguard against arbitrary detention is the right of the arrested person to know why they are being deprived of their liberty. Article 9(2) of the ICCPR explicitly guarantees this: "Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him."

Purpose and Scope

The purpose of this right is to enable the arrested person to understand their situation and to be able to challenge the lawfulness of their arrest or detention. Without knowing the grounds for arrest, an individual cannot effectively exercise their right to judicial review or prepare a defence.

• At the time of arrest: The information must be provided at the very moment of arrest or as soon as practically possible thereafter.
• Reasons for arrest: This refers to the factual grounds and the legal basis for the arrest. The arrested person must be told what specific act they are alleged to have committed and under what law they are being arrested.
• Promptly informed of charges: If formal charges are to be brought, the arrested person must be informed of these charges promptly after arrest. 'Promptly' requires urgency and should be interpreted in days rather than weeks.
• Language: The information should ideally be provided in a language the arrested person understands.

This right is fundamental for ensuring transparency and accountability in the arrest process and is an essential component of the right to liberty. In India, Article 22(1) of the Constitution provides a similar guarantee: "No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest..." Section 50 of the Code of Criminal Procedure, 1973, also mandates that a person arrested without a warrant must be informed of the grounds of arrest and the right to bail (if applicable). The Supreme Court in *D.K. Basu v. State of West Bengal* (1996) issued comprehensive guidelines regarding arrest and detention, reinforcing the requirement to inform the arrestee's family or a friend about the arrest, further bolstering this right.

Right to judicial review of detention (Habeas Corpus)**

Another critical safeguard against arbitrary detention is the right to challenge the lawfulness of one's detention before a court. Article 9(4) of the ICCPR provides: "Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful."

The Writ of Habeas Corpus

This right is commonly associated with the writ of Habeas Corpus (Latin for "you shall have the body"), a historic legal remedy. It is a court order requiring a person under arrest or in detention to be brought before a court, so that the court can determine the legality of their detention. If the detention is found to be unlawful, the court orders the immediate release of the person.

Key elements of the right to judicial review of detention under Article 9(4):

• Applicability: The right applies to anyone deprived of liberty by arrest or detention, whether in criminal, civil, administrative, or other proceedings.
• Access to a Court: The arrested or detained person must have access to a court or other authority empowered to review the lawfulness of the detention. This authority must be independent and impartial.
• Without Delay: The court must decide on the lawfulness of the detention promptly. Prolonged delays in the review process can themselves render a detention arbitrary.
• Scope of Review: The court's review must cover not only compliance with formal procedures under domestic law ("established by law") but also whether the detention is consistent with the standard of 'not arbitrary' under Article 9(1) (i.e., reasonable, necessary, proportionate).
• Mandatory Release: If the detention is found to be unlawful or arbitrary, the court must have the power to order the release of the individual.

In India, the writ of Habeas Corpus is a constitutional remedy available under Article 32 (Supreme Court) and Article 226 (High Courts) for enforcing the right to personal liberty guaranteed by Article 21 and the safeguards against detention under Article 22. This allows individuals (or others on their behalf) to challenge their detention. The Indian judiciary has actively used the Habeas Corpus writ, particularly in cases of alleged illegal detention by the police or executive, ensuring judicial scrutiny over state action affecting liberty. The scope of judicial review extends to examining whether the detention complies with the law and whether it is otherwise arbitrary or unreasonable, reflecting the standards of Article 9(4) ICCPR.

Prohibition of Torture and Cruel, Inhuman or Degrading Treatment (Article 7 ICCPR, Art 5 UDHR)**

The prohibition of torture and cruel, inhuman or degrading treatment or punishment is one of the most fundamental and universally accepted human rights norms. Article 5 of the Universal Declaration of Human Rights (UDHR) declares: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." Article 7 of the International Covenant on Civil and Political Rights (ICCPR) strengthens this prohibition: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation."

Absolute and Non-Derogable Prohibition

The prohibition contained in Article 7 is absolute and non-derogable. This means that unlike some other rights, it cannot be suspended or limited under any circumstances whatsoever, including states of war, internal political instability, public emergency, or any other exceptional situation (as explicitly stated in Article 4(2) ICCPR). There are no permissible derogations, limitations, or justifications for torture or ill-treatment.

Distinguishing Torture from other forms of ill-treatment

Article 7 covers a spectrum of prohibited acts, from torture to other cruel, inhuman or degrading treatment or punishment. While the exact lines can be debated, the key distinction often lies in the severity of the suffering inflicted and the purpose behind the act:

• Torture: Defined more precisely in the Convention against Torture (CAT) (Article 1), it generally involves the intentional infliction of *severe* pain or suffering (physical or mental) for a specific purpose, such as obtaining information or a confession, punishment, intimidation, coercion, or for a discriminatory reason, when such pain or suffering is inflicted by or with the acquiescence of a public official.
• Cruel, Inhuman or Degrading Treatment or Punishment: These terms cover acts that cause significant suffering but may not reach the threshold of severity or have the specific purpose required for torture.
  • Inhuman Treatment: Causes intense physical or mental suffering.
  • Degrading Treatment: Arouses feelings of fear, anguish, or inferiority capable of humiliating and debasing an individual and possibly breaking their physical or moral resistance.

All acts falling under this spectrum are prohibited under Article 7. The severity is assessed based on the nature of the treatment, its duration, its physical and mental effects, and the sex, age, and state of health of the victim.

State Obligations under Article 7

The prohibition imposes several strict obligations on States Parties:

• Obligation to Respect: The state must absolutely refrain from committing torture or ill-treatment through its officials or agents. This includes police, military, prison staff, and any other public official. Orders from superiors are no defence.
• Obligation to Protect: The state must take effective measures to prevent torture and ill-treatment by private individuals or entities within its jurisdiction, and by its own officials acting in any capacity. This includes enacting laws criminalising torture and ill-treatment, establishing effective preventative mechanisms (like independent oversight of detention facilities), and ensuring that evidence obtained through torture is not admitted in legal proceedings.
• Obligation to Fulfill: The state must take positive steps to ensure victims of torture and ill-treatment have access to effective remedies, including prompt, impartial, and effective investigation of all allegations, prosecution and punishment of perpetrators, and comprehensive rehabilitation for victims (medical, psychological, social).

In India, the prohibition of torture is considered inherent in the Right to Life and Personal Liberty (Article 21) by the Supreme Court. While India has not ratified the CAT, the principles are reflected in domestic law and judicial pronouncements. The *D.K. Basu guidelines* (1996) laid down mandatory procedures to prevent custodial violence and deaths. However, the absence of specific legislation defining and criminalising torture in line with international standards and the failure to ratify CAT remain significant human rights concerns in India.

The absolute prohibition of torture and ill-treatment is a bedrock principle of IHRL, reflecting the fundamental importance of human dignity and physical and mental integrity. Its non-derogable nature underscores its status as a peremptory norm of international law.