Human Dignity: A Purpose in Perpetuity.
Human Dignity: A Purpose in Perpetuity. 23 March 2023
Introduction
[1] I stand before you having being twice blessed. First, it is my esteem honor and privilege to deliver the 13th address of this series of Lectures which has been developed in the memory of Lord Donald Macfadyen who exemplified the ideal of a good Scottish judge more than anyone else. What Lord David Edward said in the inaugural lecture of this series which was entitled “What Are Judges For?”, needs to be reiterated again:
“Lord Donald Macfadyen was both courteous and good-humored but always in firm control of himself and his court; learned but not pedantic; lucid in thought, speech, and writing; kind and understanding with a quiet, understated sense of humour; and, as he demonstrated in his protracted final illness, enormously courageous.”
This is indeed an excellent description of the impeccable and sterling qualities he possessed as a Judge. I regret of not having known him personally, but still, I know him by the scholarly tribute(s) given in his honour at this esteemed platform and the judgement(s) that he rendered. Lord Reed had once said, during his time as principal commercial judge, Lord Macfadyen was so prolific that an edition of the Scots Law Times consisted entirely of judgments which he had delivered. Lord Macfadyen certainly matches the venerable Justice Oliver Wendel Holmes who is hailed as “a profound Scholar, a lucid and courageous thinker and a saintly character”. As a judge he has handed down path breaking decisions which demonstrated the law’s adaptability to modern needs and while rendering such judgments he also, rejected outdated precedents and insisted that legal principles should harmonize with the needs of life in a developing civilization.
And my Second honour is the fact that I am not only the first Indian but also the first Asian judge to be asked to deliver this this prestigious Lecture. It is also fitting, because both India and Scotland have a shared constitutional history of preserving and protecting human dignity, which is the theme of this lecture this year. I tend to recall what Mahatma Gandhi said of Human dignity:
“Non-cooperation with evil is as much a duty as is cooperation with good and the tool which it is human dignity.”
This line takes us through the process by which human dignity is now a central feature of almost all modern constitutions and international documents. Written constitutions, in most democratic countries, are of recent origin, which may, at most, go back a few hundred years. Most of these constitutions recognise and lay down specific provisions concerning human rights. Even those liberal democracies that do not have written constitutions cherish and enforce human rights: the United Kingdom and Israel would be such examples. The predominant feature of this lecture is to demonstrate my hypothesis that the foundation of these human rights is ‘human dignity’. The concept of dignity has not only refurbished hitherto known human rights but has led to the creation of a new genre of such rights. Towards this end, I have structured my lecture in five parts.
[2] I would like to initiate my discussion, in Part I, by emphasising that human rights are embedded in the very notion of democracy. In Part II, my narrative will be to explore the three models of dignity, namely: theological, philosophical and constitutional. As a constitutional value, human dignity involves a person’s free will, autonomy and ability to write a life story within the tryst of time and space. Then, Part III of the lecture will discuss how the concept of human dignity became the fulcrum of human rights – historically or otherwise. Part IV will elucidate the role of the judiciary in adopting dignity as a constitutional right, and the manner in which the judiciaries of various jurisdictions have made use of human dignity to expand the notions and contours of human rights. Here, while narrating comparative judicial pronouncements, I will delve into the phenomenal contribution of the Indian judiciary in particular. Thereafter, in Part V, I will consider the challenges faced by humanity which the present world is facing and the manner in which it is inflicting a blow to human dignity and, in turn, posing threats to human rights across the world. I intend to conclude with my message that human dignity as a virtue is capable of giving full expression to the process of world peace.
Part I:
Democracy and Human Rights
[3] A modern democratic nation state owes its origin to the social contract theory, which was initially propounded by Thomas Hobbes and improved upon, from time to time, by other prominent political thinkers. It says that, in order to avoid anarchy and the conditions of ‘might is right’, human beings come together and create a COMMON-WEALTH or STATE. Hobbes describes this common power as the GREAT LEVIATHAN.[1] Over a period of time, it was transformed into a democratic state where people choose their representatives and give them power to govern. This is achieved by an electoral process, in which elections are to be held in a free and fair manner. It gives rise to ‘majority rule’, i.e.. the political party that achieves the majority is treated as the chosen representative of the people, with the right to govern. This is the essence of a democracy.
[4] However, that does not mean that the majority has a right to rule in any manner that it wants. Every good system of democracy also commands that the elected Government should follow certain well-recognised precepts. These include following the legal norms and rules; respecting human rights such as freedom of speech, the right to equality and the right to life and liberty; ensuring certain rights to ethnic and other minorities; and adhering to the principles of democracy, thereby giving voice to the opposition (right to defend), etc. Whereas majority rule by the elected Government is known as the ‘formal’ aspect of democracy, enshrining the aforesaid values makes it a ‘substantive democracy’ or ‘liberal democracy’. All these facets become part of a robust constitution and can be described as constitutionalism. Such features bring about the concept of limited government. Thus, in a nutshell, although, in a liberal democracy, people are sovereign, their chosen representatives have the right to govern those very people.
[5] Natural law theorist Hans Kelsen and legal philosopher HLA Hart argued[2] that such an ultimate authority need not be human; it can be a constitution or a set of laws that acts as the ‘final decider’ in the regime. According to Hart, a political society must have one rule, i.e. the Rule of Recognition, which identifies what counts as law in that society. Upon that rule rests the very fact that there is a political regime, and not simply one person or a group of persons with superior might, ordering its citizens around. In this way, Hart adopts Hobbes’ theory that the Rule of Recognition must have a certain content for defining a political regime. At the same time, Hart reinterprets Hobbes’ argument by stating that such a Rule of Recognition must identify law if government is to be created. This formulation of the ‘Rule of Recognition’ underwent change from time to time by subsequent thinkers and has come to be settled in the form of a constitution.[3] In a nutshell, the democratic route of the creation of a Leviathan is more appropriate.[4]
[6] Thus, liberal democracy with limited government professes that it is the constitution of a nation that is supreme, and it ensures the Rule of Law. The constitution, on the other hand, is a document of good governance that recognises that ‘We, the people’, with the adoption of a democratic system of majority rule, have preserved, for ourselves, our basic and natural human rights. And any elected government is supposed to allow the people to enjoy these rights. Constitutional courts step in to ensure that these rights of the citizenry – nay, that humanity – are protected and enforced. That is the essence of a liberal democracy. Despite the fact that ties between democracy and human rights have existed for quite some time, the role that dignity has played in relation to democracy is relatively recent and predominantly stems back to the conclusion of the Second Wor;d War.
[7] Human rights law must guarantee that human rights protection is incorporated into an appropriate, overarching institutional architecture, which can only be found where political power is held by the people and humans are put at the centre.[5] It may be emphasised here that, according to scholars such as Peter Haberle, one of the first (German) scholars to pioneer this approach, dignity has become a crucial element and mechanism of popular sovereignty.[6] In a distant echo of Kantian socialism, human dignity, when considered as the capacity to decide one’s own purposes and to self-govern, entails the capacity and the right to participate in the democratic decision-making process; democracy, therefore, becomes the ‘organizational consequence of human dignity’.[7] Thus, a new sort of democracy with regard for human dignity at its core is arguably beginning to emerge, challenging and advancing a procedural, majoritarian democracy.[8] From this analytical vantage point, the idea of human dignity is much more than an individual’s (intuitive and elusive) feeling of self-respect and respect for others; rather, it places humans at the centre of democracy, therefore defining the exercise of political power.
Part II:
Understanding the Meaning and Various Aspects of Human Dignity
‘The process of justice is never finished, but reproduces itself, generations after generations.’
– Justice Benjamin Cardozo
[8] Let me say at the outset that this rising usage of the idea of human dignity in constitutions, international human rights accords and, most importantly, constitutional adjudication has been accompanied by a growing feeling of scholarly perplexity and reluctance to define its meaning.[9] The more sceptical of the dignity critics view this idea as a ‘loose cannon’[10] or ‘a meaningless concept’.[11] Especially worrisome seems to be the fact that legal applications of dignity may equally support opposite sides of an argument,[12] notably in the cases of euthanasia and assisted suicide, thereby presumably depriving this notion of a defined meaning. The use of dignity in the context of human rights adjudication is an additional recurring concern.[13] Yet, there is a consensus that human dignity is largely an individual trait, i.e. it is defined by and based on a person’s feeling of (self-)respect – a sort of distinctive virtue, or the capacity and willingness to live a decent life.[14] Therefore, it is always better to understand and ascertain the meaning of human dignity conceptually.
[9] The root of the English term ‘dignity’ is found in the Latin words ‘dignus’and ‘dignita’. In the Romance languages the words ‘dignité’ (French), ‘dignità’ (Italian), ‘dignidade’ (Portuguese) and ‘dignidad’ (Spanish) are used[15]. In English dictionaries the definitions of ‘dignity’ appear as ‘honour’, ‘glory’ and ‘respect’.[16] This abundance of meanings stems from the complexity of the concept of ‘human dignity’. In this light, the above-quoted line of the great Justice Cardozo reminds us that, if the law had a different place here, different people would have a place in law. The concept of human dignity – having a history of 2,500 years – has been used primarily as a social value, and it has also been influenced by different religions and philosophies, which in turn developed dignity in their own contemplations.
[10] Typical conceptualisations of dignity ‘fall short’ in large part because they are too limited.[17] These conceptualisations create clear lines around dignity in order to illustrate that it is either identical to another idea (such as autonomy)[18] or separate from all other concepts.[19] By establishing such restrictions, dignity becomes either too exclusive or excessively inclusive. Consequently, the law either disregards pertinent dignitary problems or lacks the precise means to identify and rectify them. At the absolute least, the law cannot discriminate between dignity issues and other human issues.
[11] In contrast to these approaches, a new meaning of the term ‘dignity’ can be found in linguistic philosopher Ludwig Wittgenstein’s assertion that precise definitions of words in natural languages frequently distort their own meanings.[20] Wittgenstein rejected the notion that a word has a single, fundamental meaning that applies to all its applications. Instead, he asserted that ‘the meaning of a word is its usage in the language’[21] and not an abstract connection between a term and its meaning. To discover the meaning and function of a word, Wittgenstein famously said, ‘[D]o not think, but look!’[22]
[12] These insights of Wittgenstein’s have been cited and used by the American Supreme Court. In Guaranty Trust Co v York, for instance, Justice Frankfurter used a similar argument to reject an essentialist view of the separation between substance and procedure:
‘Matters of “substance” and matters of “procedure” are sometimes discussed in legal texts as if they constituted a chasm dividing the entire legal world. However, “substance” and “procedure” are obviously the same keywords for completely distinct issues. Neither represents the identical invariants. Depending on the specific situation it is applied to, each denotes a unique set of variables. And the disparate issues are, at best, tangentially related.’[23]
[13] In general, however, lawyers are semantic essentialists – maybe as a result of their early indoctrination in the concept of the ‘components’ (individually necessary and collectively sufficient criteria) of a crime or tort. However, rejecting semantic essentialism can even be profitable in legal contexts. As Wittgenstein and subsequently Justice Frankfurter observed, once we leave the simple referential assumption that the meaning of a word is fixed and uniform and turn to its actual use in language, we begin to notice that the same term frequently has distinct meanings in different circumstances. Consider the word ‘game’, which was the key example used by Wittgenstein.
[14] There is no definitive definition of what constitutes a ‘game’ and what does not. If we consider ‘board-games, card-games, ball-games, Olympic games, etc.’, we will not find something shared by all, but rather similarities, relationships and a multitude of them.[24] Wittgenstein refers to the commonalities between various game types as ‘family resemblance’.[25] The absence of a single feature that defines a family does not preclude us from observing that family members resemble one another.[26] The same holds true for terms such as ‘game’, which act in a variety of ways yet share similarities.
[15] Significantly, Wittgenstein’s understanding of language demonstrates that typical approaches to conceptualising dignity and finding new meaning to its forms, which hunts exclusively for its ‘necessary and sufficient’ characteristics, risk distorting or limiting the meaning of the word. Instead of seeking precise definitions with obvious and inflexible borders, he urges us to conceive words by investigating their ‘overlapping and crisscrossing’ meanings.[27] In order to conceptualise dignity, we must observe how the term is used in our language. The published judgments of the constitutional courts across the globe are a valuable resource for this endeavour because they demonstrate how a politically and religiously diverse group of judge(s) have evoked dignity in a number of contexts over time.
[16] Examining the different ways in which constitutional court justices have evoked dignity in their judgments, paying special attention to the years after 1946, when the phrase ‘human dignity’ first appeared in an opinion, led to the evolution of a definition of dignity that led to the determination of theoretical basis of human dignity as a constitutional value and constitutional right.[28] The year 1946 also serves as a useful benchmark because it closely correlates with the end of the Second World War, after which many foreign countries incorporated the word ‘dignity’ into their national constitutions, and the United Nations placed respect for human dignity at the core of the Universal Declaration of Human Rights.[29] And my definition of ‘human dignity’ considers the situations in which the phrase has emerged and the courts’ many interpretations of dignity.
[17] This approach considers dignity not as a single idea but rather as multiple concepts. Dignity is not a fixed category, but rather a family of meanings with many relationships. The forms of dignity that can be identified by reviewing the constitutional courts’ rulings are as unique as individual family members but, like siblings, they share characteristics. In contrast to the conventional technique of defining dignity, these categories cannot be joined to make a Venn diagram with a constant centre. These conceptions are sensitive to context, thus an overlap that exists in one instance may not exist in another.
[18] A context-driven concept of dignity evolves with societal change; it does not impose static definitions on society, but rather responds to shifting attitudes, structures and ideas. In addition, it understands that understanding is, in the words of Hans-Georg Gadamer, ‘a historically conditioned occurrence’.[30] Changes in time, culture, politics and technology can generate new dignity concerns and perhaps eliminate older ones. Therefore, dignity cannot be defined permanently, but must be open to change.[31]
[19] Critics may also claim that the fluidity of dignity renders it nonsensical; that because it applies in many situations and to a variety of difficulties, it lacks the consistency that makes unified, conventional conceptions of dignity so appealing.[32] Traditional attempts to define dignity, however, have proven to be incapable of addressing the diverse but interrelated difficulties that dignity is used to represent.[33] By abandoning universal concepts in favour of specific types, we may talk more clearly about dignity. Because it was developed contextually and not in a vacuum, the proposed typology gives a more cogent framework against which to examine distinct legal concerns.
Conceptions of Dignity
[20] In my analysis of the various experiment(s) of constitutionalism across the jurisdictions, there are five concepts of dignity when we move away from a generic understanding of it and toward the more specific circumstances in which dignity issues arise. These are referred to as ‘institutional status as dignity’, ‘equality as dignity’, ‘liberty as dignity’, ‘personal integrity as dignity’, and ‘collective virtue as dignity’. Each category has a unique epistemic narrative that clarifies its philosophical, theological or political foundations. I connect the roots of each form of dignity to its modern-day defining characteristics and then link each type to Supreme Court decisions that employ the term.
[21] In doing so, I propose that the primary judicial function of dignity is to give weight to substantive interests that are at stake in particular contexts. For example, the court invokes institutional status as dignity to accord greater deference to nation-states in sovereign immunity cases; equality as dignity to justify its anti-discrimination jurisprudence; liberty as dignity to protect individuals’ personal choices with regard to abortion and same-sex relationships; personal integrity as protection of people’s reputations and bodies from disgraceful or humiliating intrusions; and collective virtue as dignity to advance the common good. As analysed in the previous section of this lecture, each sort of dignity is related to a legal interest that the constitutional court values in a variety of scenarios.
[22] Let me give an example from the Indian Supreme Court – a court that has given a new dimension to the concept – that notwithstanding the absence of the expression ‘human dignity’ in the chapter relating to Fundamental Rights which is Part III of the Indian Constitution, certain rights such as the right to equality (Article 14), certain freedoms (Article 19) and right to life and personal liberty (Article 21) are interpreted by the Indian Supreme Court over the past five decades as keeping in view the individual as the focal point of the Constitution, because these fundamental rights are to be secured for the citizens of the country. The concept of human dignity, in the process, has been recognised on the premise that it is the realisation of individual rights that would lead to the collective wellbeing of the community. Thus, human dignity, as a value, has been the basis for giving varied kinds of rights.
Three Models of Human Dignity
‘All labor that uplifts humanity has dignity and importance and should be undertaken with painstaking excellence.’
– Martin Luther King, Jr
[23] Before charting a discourse on such rights, let me first discuss the three accepted models of human dignity doctrine and their interconnection. The concept of human dignity dates back thousands of years. Historically, human dignity, as a concept, found its origin in different religions in which it is held to be an important component of their theological approach. Later, it was also influenced by the views of philosophers who developed human dignity in their contemplations.[34] After the Second World War, constitutional and international legal texts began to adopt the concept and, in this manner, human dignity has come to be recognised as a constitutional value and a constitutional right,[35]
[24] Thus, historically, three types of models for determining the content of the constitutional value of human dignity are recognised. These are: (i) Theological Model; (ii) Philosophical Model; and (iii) Constitutional Model. Legal scholars were called upon to determine the theological basis of human dignity as a constitutional value and as a constitutional right. Philosophers also came out with their views justifying human dignity as a core human value. Legal understanding is influenced by theological and philosophical views, though these two are not identical. Legal scholars have discussed the jurisprudential aspects of human dignity based on the aforesaid philosophies. Over a period of time, human dignity has found its way through constitutionalism, whether written or unwritten.
[25] The manner in which historical progression has taken place from theological to philosophical recognition of ‘dignity’ as a concept and attaining the coveted position as a constitutional right, makes an interesting study. Before we talk of dignity in the present-day context, in order to understand its true complexion, flavour and contours, it would be worthwhile tracing this evolution.
(a) Theological Model
‘Amritasya Putrah Vayam’ – We are all begotten of the immortal
This is how Hinduism introduces human beings.
‘Every individual soul is potentially divine’
– proclaimed Swami Vivekananda
[26] Hinduism does not recognise human beings as mere material beings. Its understanding of human identity is more ethical-spiritual than material. That is why a sense of immortality and divinity is attributed to all human beings in Hindu classical literature. Professor SD Sharma sums up the position with the following analysis:[36]
‘Consistent with the depth of Indian metaphysics, the human personality was given a metaphysical interpretation. This is not unknown to the modern occidental philosophy. The concept of human personality in Kant’s philosophy of law is a metaphysical entity but Kant was not able to reach the subtler unobserved element of personality, which was the basic theme of the concept of personality in Indian legal philosophy’.
[27] It is on the principle that the soul that makes the body of all living organisms its abode is in fact an integral part of the Divine Whole – Paramaatman – that the Vedas declare unequivocally:
Ajyesthaaso Akanisthaasa Yete; Sam Bhraataro Vaavrudhuh Soubhagaya
– RigVeda, Mandala-5, Sukta-60, Mantra-5
‘No one is superior or inferior; all are brothers and sisters; all should strive for the interest of all and progress collectively’
[28] In the Bible’s book of Genesis, Adam and Eve exist in a state of innocence until the serpent tempts Eve with some fruit from the Tree of the Knowledge of Good and Evil. After eating the fruit, both see their nakedness and feel ashamed, and they try to cover it up. God banishes them from the Garden of Eden for violating his commandment. The Christian concept of dignity has revolved around this capacity for ‘moral choice’. It recognises that human beings are able to distinguish between good and evil, and they can choose to be good, even if they often do not do so. In this sense, in the Christian tradition, all human beings are fundamentally equal as they are endowed with an equal capacity for choice
[29] Christianity believes that the image of God is revealed in Jesus and through him to humankind. God is rational and determines his goals for himself. Man was created in the image of God, and he too is rational and determines his own goals, subject to the God as a rational creation. Man has freedom of will. This is his dignitas. He is free to choose his goals, and he himself is a goal. His supreme goal is to know God. Thus, he is set apart from a slave and all the creations under him. When a man sins, he loses his human dignity. He becomes an object.[37]
[30] Even in Islam, the tradition of human rights became evident in the medieval ages. Being inspired by the tenets of the Holy Koran, it preaches universal brotherhood, equality, justice and compassion. Islam believes that man has a special status before God. Because man is a creation of God, he should not be harmed. Harm to a human being is harm to a God. God, as an act of love, created man and he wishes to grant him recognition, dignity and authority. Thus, in Islam, human dignity stems from the belief that man is a creation of God – the creation that God loves more than any other. The Bhakti and Sufi traditions, too, in their own unique ways popularised the idea of universal brotherhood. It revived and regenerated the cherished Indian values of truth, righteousness, justice and morality.
(b) Philosophical Model
[31] The modern conception of human dignity was affected by the philosophy of Kant.[38] Immanuel Kant, in fact, presented a secular version of the Christian understanding of dignity.[39] Kant’s moral theory is divided into two parts: ethics and right (jurisprudence). The discussion of human dignity took place within his doctrine of ethics and does not appear in his jurisprudence.[40] Kant’s jurisprudence features the concept of a person’s right to freedom as a human being.
[32] According to Kant, a person acts ethically when he acts by force of a duty that a rational agent self-legislates on to his own will. This self-legislated duty is not accompanied by any right or coercion and is not correlative to the rights of others. For Kant, ethics includes duties to oneself (eg to develop one’s talents) and to others (eg to contribute to their happiness). This ability is the human dignity of man. This is what makes a person different from an object. This ability makes a person to an end and prevents her from being a mere means in the hands of another.
[33] Kant asserts that we can point to nothing as unconditionally good other than goodwill – that is, the capacity for proper moral choice. But he did not see this in religious terms; for him, moral choice consists of the ability to follow abstract rules of reason for their own sake, and not for instrumental reasons having to do with the outcomes such choices imply for human wellbeing or happiness. The human capacity for moral choice means that human beings are not machines subject to the laws of physics, as Hobbes suggested; they are an Agent’s environment and, for that reason, need to be treated not as ends to other means, but as ends in themselves. Morality is not a utilitarian calculus of outcomes that maximise human happiness, but about the act of choice itself. For Kant, human dignity revolves around human will, and that human beings are genuine agents or uncaused causes.
[34] The great philosopher George WF Hegel accepted this link between moral choice and human dignity; human beings are morally free agents who are not simply rational machines seeking to maximise the satisfaction of their desires. But unlike Rousseau or Kant, Hegel put recognition of that moral agency at the centre of his account of the human condition. In The Phenomenology of Spirit,[41] he argued that human history was driven by a struggle for recognition.
[35] Legal philosopher Jeremy Waldron[42] opines that dignity is a sort of status concept; it has to do with the standing (perhaps the formal legal standing or perhaps, more informally, the moral presence) that a person has in society and her dealings with others. He has ventured even to define the term ‘dignity’ in the following manner:
‘Dignity is the status of a person predicated on the fact that she is recognized as having the ability to control and regulate her actions in accordance with her own apprehension of norms and reasons that apply to her; it assumes she is capable of giving and entitled to give an account of herself (and of the way in which she is regulating her actions and organizing her life), an account that others are to pay attention to; and it means finally that she has the wherewithal to demand that her agency and her presence among us as human being be taken seriously and accommodated in the lives of others, in others’ attitudes and actions towards her, and in social life generally.’[43]
[36] In an article on ‘Dignity, Rights and Responsibilities’, Waldron reiterated his approach to human dignity as reflecting a conception of rank. In the English context, the relationship is between rights and responsibilities. Continuing further, Waldron noted – while referring to the writings of HLA Hart – that it should not be assumed that a single view can explain it. Kant, on the other hand, has initially used dignity as a ‘value idea’, though, in his later work, he also talks of the ‘respect’ that a person needs to accord to another person, thereby speaking of it more as a matter of status. This approach has been further developed by Bruce Ackerman in his book.[44] He emphasises that human dignity is based on the individual’s free will and the ability to develop their personality and fulfil the one in many forms of life.
(c) Constitutional Model
[37] The French Revolution led to the creation of two different versions of dignity: (1) the dignity of individuals; and (2) the dignity of collectivities. Dignity has a right that was recognised thereafter had constitutional recognition after the Second World War.[45] The most important lesson that was learned as a result of the Second World War was the realisation by the Governments of various countries about human dignity that needed to be cherished and protected. It is for this reason that in the UN Charter of 1945, adopted immediately after the war, the dignity of the individuals was mentioned as of core value. The almost contemporaneous Universal Declaration of Human Rights of 1948 echoed the same sentiments.
[38] Common Article 3 of the Geneva Conventions of 1949 explicitly prohibits ‘outrages upon personal dignity’. There are provisions to this effect in the International Covenant on Civil and Political Rights (ICCPR) (Article 7) and the European Convention on Human Rights (Article 3) although implicit. However, one can easily infer the said implicit message in these documents about human dignity. The ICCPR begins its preamble with the acknowledgement that the rights contained in the covenant ‘derive from the inherent dignity of the human person’. And some philosophers say the same thing. Even if this is not a connection between dignity and law as such, it certainly purports to identify a wholesale connection between dignity and the branch of law devoted to human rights.
[39] One of the key facets of twenty-first-century democracies is the primary importance they give to the protection of human rights. From this perspective, dignity is the expression of a basic value accepted in a broad sense by all people, and thus constitutes the first cornerstone in the edifice of human rights. Therefore, there is a certain fundamental value to the notion of human dignity, which some would consider a pivotal right deeply rooted in any notion of justice, fairness and a society based on basic rights.
[40] The idea that dignity is rooted in human moral choice has received political recognition by becoming embedded in a significant number of modern democratic constitutions, including those of Germany, Italy, Ireland, Japan, Israel and South Africa. For example, article I, section 1 of the German Basic Law of 1949 states: ‘The dignity of man is inviolable. To respect and protect it shall be the duty of all public authority’. Similarly, section 10 of the South African Constitution states: ‘Everyone has inherent dignity and the right to have their dignity respected and protected’. The South African Constitutional Court has noted: ‘A right to dignity is an acknowledgement of the intrinsic worth of human beings.’
[41] Within two years of the adoption of the aforesaid Universal Declaration of Human Rights, which stated that all human beings are born free and equal in dignity and rights, India attained independence and immediately thereafter Members of the Constituent Assembly took up the task of framing its Constitution. It was but natural to include a Bill of Rights in the Indian Constitution, and the Constitution Makers did so by incorporating a chapter on Fundamental Rights in Part III. However, it would be significant to point out that there is no mention of ‘dignity’ specifically in this chapter on Fundamental Rights. So was the position in the American Constitution. In America, human dignity as a part of human rights was brought in as a judge-made doctrine. The same course of action followed as the Indian Supreme Court read human dignity into Articles 14 (right to equality) and 21 (right to life and liberty) of the Constitution of India.
Part III: Symphonies of the Three Models
[42] I have already discussed above the concept that religion(s) recognise(s) all human beings as equal, who are God’s creation and God loves them equally. The entire world is one ‘kutumb’ (family) where everyone has the right to grow and be meaningful to society. That is where the right of choice comes in. In Plato’s Republic, which is a dialogue between the great philosopher Socrates and two young persons about the nature of a just city, one of the messages (and a central one) is that Socrates understood that ‘desire’ and ‘reason’ are component parts of the human psyche (soul), but a third part (thymos) acts completely independent of the two. Thymos is the seat of judgments of worth.
[43] This part prompts human beings to crave positive judgments about their worth or dignity. Although these judgments can come from within, human beings want other people in society to ‘recognise’ their worth and to treat them with dignity. In that sense, they want society to recognise their ‘identity’. Francis Fukuyama has used the term ‘identity’ in a specific sense in his book,[46] which is a discourse on contemporary identity politics and the struggle for recognition, in which he remarks:
‘Identity grows, in the first place, out of a distinction between one’s true inner self and an outer world of social rules and norms that does not adequately recognize that inner self’s worth or dignity. Individuals throughout human history have found themselves at odds with their societies. But only in modern times has the view taken hold that the authentic inner self is intrinsically valuable, and the outer society systematically wrong and unfair in its valuation of the former. It is not the inner self that has to be made to conform to society’s rules, but society itself that needs to change.
The inner self is the basis of human dignity, but the nature of that dignity is variable and has changed over time. In many early cultures, dignity is attributed only to a few people, often warriors who are willing to risk their lives in battle. In other societies, dignity is an attribute of all human beings, based on their intrinsic worth as people with agency. And in other cases, dignity is due to one’s membership in a larger group of shared memory and experience.
Finally, the inner sense of dignity seeks recognition. It is not enough that I have a sense of my own worth if other people do not publicly acknowledge it or, worse yet, if they denigrate me or don't acknowledge my existence. Self-esteem arises out of esteem by others. Because human beings naturally crave recognition, the modern sense of identity evolves quickly into identity politics, in which individuals demand public recognition of their worth. Identity politics thus encompasses a large part of the political struggles of the contemporary world, from democratic revolutions to new social movements, from nationalism and Islamism to the politics on contemporary American university campuses. Indeed, the philosopher Hegel argued that the struggle for recognition was the ultimate driver of human history, a force that was key to understanding the emergence of the modern world.’
[44] By the early nineteenth century, most of the elements of the modern concept of identity showed their presence: the distinction between the inner and the outer selves, the valuation of the inner being above existing social arrangements, the understanding that the dignity of the inner self rests on its moral freedom, the view that all human beings share this moral freedom, and the demand that the free inner self is recognised. Hegel pointed to a fundamental truth about modern politics: that the great passions unleashed by events such as the French Revolution were, at base, struggles over dignity. The inner self was not just a matter of personal reflection; its freedom was to be embodied in rights and law. The democratic upsurge that would unfold in the two centuries after the French Revolution was driven by people demanding recognition of their political personhood, that they were moral agents capable of sharing in political power.
[45] It is the aforesaid philosophical journey that has paved the way for constitutional recognition of the right to dignity. A liberal democratic regime, governed by the Rule of Law and based on individual rights, enshrines the notion of equal dignity in law by recognising citizens as moral agents capable of sharing in their own self-government. Fukuyama[47] has summed up this journey from theological to philosophical to constitutional rights model of dignity.
Part IV:
Constitutional Expansion of Dignity Jurisprudence: Defining its Contours and Shaping Democracy
[46] Dignity as a jurisprudential concept has now been well defined by constitutional courts all across the world. The basic principles of dignity and freedom of the individual are an attribute of natural law that becomes the right of all individuals in a constitutional democracy. Dignity has a central normative role as well as a constitutional value. This normative role is performed in three ways: first, it becomes the basis for constitutional rights; secondly, it serves as an interpretative principle for determining the scope of constitutional rights; and thirdly, it determines the proportionality of a statute limiting a constitutional right. Thus, if an enactment puts a limitation on a constitutional right and such limitation is disproportionate, such a statute can be held to be unconstitutional by applying the doctrine of proportionality.
[47] As Professor Ronald Dworkin argues, there are two principles about the concept of human dignity – the first principle regards an intrinsic value of every person, namely: every person has a special objective value that is not only important to that person alone, but the success or failure of the lives of every person is important to all of us. It can also be described as self-respect that represents the free will of the person, his capacity for himself and to control his own life. The second principle is that of personal responsibility, which means that every person has the responsibility for success in his own life and, therefore, he must use his discretion regarding the way of life that will be successful from his point of view.
[48] The sum total of this exposition is well defined by Professor Upendra Baxi by explaining that, according to the aforesaid view, dignity is to be treated as ‘empowerment’, which makes a triple demand in the name of respect for human dignity, namely: (i) respect for one’s capacity as an agent to make one’s own free choices; (ii) respect for the choices so made; and (iii) respect for one’s need to have a context and conditions in which one can operate as a source of free and informed choice.
[49] His addition to the aforesaid theory commands acceptance when he says that the idea of dignity is a metaethical one, i.e. it marks and maps a difficult terrain of what it may mean to say is ‘human’ and remaining ‘human’ or, put another way, the relationship between ‘self’, ‘others’ and ‘society’. In this entire formulation, ‘respect’ for an individual is the fulcrum, which is based on the principle of freedom and capacity to make choices and a good or just social order is one that respects dignity via assuring ‘contexts’ and ‘conditions’ as the ‘source of free and informed choice’.
[50] Let me illustrate this by showing how certain fundamental rights are expanded by translating this human dignity. The constitutional courts have even given certain rights to prisoners, with the assertion that they are to be treated with human dignity and they are not deprived of their rights merely because they are in prisons as accused persons or even as convicts. The judgments in DK Basu v State of West Bengal[48] and Sunil Batra v Delhi Administration[49] are two examples of this, although they do not specifically mention human dignity.
[51] In DK Basu, the court laid down the procedure that is to be followed at the time of arrest of a person to ensure that their due dignity is maintained. Most notably, among others, the court directed that such a person shall not be handcuffed unless he is a hardened criminal and, in that case, the prior permission of the judicial magistrate concerned must be taken.
[52] In both these cases, while upholding this broad view of Article 20(3), Justice Krishna Iyer relied heavily on the decision of the US Supreme Court in Miranda v Arizona.[50] The majority opinion, by Chief Justice Earl Warren, had laid down that custodial statements could not be used as evidence unless the police officers had administered warnings about the accused’s right to remain silent. The decision also recognised the right to consult a lawyer prior to and in the course of custodial interrogations. The practice promoted by this case is that it is only after a person has ‘knowingly and intelligently’ waived of these rights after receiving a warning that the statements made thereafter can be admitted as evidence. The safeguards were prescribed in the following manner:
‘ … the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned’.[51]
[53] Again, the United States Supreme Court in Escobedo v Illinois[52] held that these safeguards were designed to mitigate the disadvantages faced by a suspect in a custodial environment. This was done in recognition of the fact that methods involving deception and psychological pressure were routinely used, and often encouraged, in police interrogations. Emphasis was placed on the ability of the person being questioned to fully comprehend and understand the content of the stipulated warning. It was held thus:
‘In these cases, we might not find the defendant’s statements to have been involuntary in traditional terms. Our concern for adequate safeguards to protect the precious Fifth Amendment right is, of course, not lessened in the slightest. In each of the cases, the defendant was thrust into an unfamiliar atmosphere and run through menacing police interrogation procedures … ’.[53]
[54] In India, this view that person’s autonomy is respected on the touchstone of human dignity was cemented in Smt Selvi and Others v State of Karnataka,[54] where, while dealing with the involuntary administration of certain scientific techniques (narcoanalysis, polygraph examination and the Brain Electrical Activation Profile test for the purpose of improving investigation efforts in criminal cases) a three-judge Bench of the Indian Supreme Court opined that the compulsory administration of the impugned techniques constitutes ‘cruel, inhuman or degrading treatment’ in the context of Article 21.
[55] It is obvious that such an interrogation environment is created for no purpose other than to subjugate the individual to the will of his examiner. This atmosphere carries its own badge of intimidation. To be sure, this is not physical intimidation, but it is equally destructive of human dignity.[55] The current practice of incommunicado interrogation is at odds with one of our nation’s most cherished principles – that the individual may not be compelled to incriminate himself. Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.
[56] In Sunil Batra’s case, a habeas corpus petition based on a written complaint was made by a prisoner to a Judge of the Supreme Court, informing brutal assault by a head warder on a co-prisoner. In this case, Justice VR Krishna Iyer observed as under:
’‘The constitutional imperative which informs our perspective in this habeas corpus proceeding must first be set out. The rule of law meets with its Waterloo when the State’s minions become lawbreakers and so the court, as the sentinel of the nation and the voice of the Constitution, runs down the violators with its writ and secure compliance with human rights even behind iron bars and by prison warders. This case is at once a symptom, a symbol and a signpost vis-a-vis human rights in prison situations. When prison trauma prevails, prison justice must invigilate and hence we broaden our ‘habeas’ jurisdiction. Jurisprudence cannot slumber when the very campuses of punitive justice witness torture.’[56]
[57] In Prem Shankar Shukla v Delhi Admn,[57] however, which arose from the handcuffing of prisoners, Krishna Iyer J, speaking for a three-judge Bench specifically invoked the dignity aspect, and held:
‘The guarantee of human dignity, which forms part of our constitutional culture, and the positive provisions of Articles 14, 19 and 21 spring into action when we realize that to manacle man is more than to mortify him; it is to dehumanize him and, therefore, to violate his very personhood, too often using the mask of “dangerousness” and security.’[58]
‘The Preamble sets the humane tone and temper of the Founding Document and highlights justice, equality and the dignity of the individual.’[59]
[58] Likewise, bonded labour is treated as a class of persons who also have the right to live with dignity. In Bandhua Mukti Morcha v Union of India,[60] while dealing with individuals who were living in bondage, the Indian Supreme Court again emphasised their right to live with human dignity, and observed that:
‘This right to live with human dignity enshrined in Article 21 derives its life breath from the directive principles of State policy and particularly clauses (e) and (f) of Article 39 and Articles 41 and 42 and at the least, therefore, it must include protection of the health and strength of the workers, men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief. These are the minimum requirements which must exist in order to enable a person to live with human dignity, and no State – neither the Central Government nor any State Government – has the right to take any action which will deprive a person of the enjoyment of these basic essentials.’[61]
[59] Interestingly, in these cases the constitutional courts chose to fill in the legal lacuna by locating human dignity between the lines of the visible text of the constitution and rested its approach by connecting it with the intrinsic value of every human being.
Constructing Dignity in Case Law: Evolution of Democracy through Ascendance of Right(s)
[60] In the cases mentioned above, we find that although human dignity as a constitutional value is recognised, the constitutional courts felt contended by describing human dignity as the intrinsic value of every human being and acknowledging a person’s autonomy as an attribute of dignity. At the same time, the development of the jurisprudential basis of human dignity was at a nascent stage. However, in recent years this task has been accomplished and has been taken forward by various judgments. Thus, the judicial evolution of law from constitutional courts across the world embarks on an enquiry as to what would be the meaning and scope of ‘human dignity’ and what its postulates are. Let me now showcase how dignity jurisprudence has been imbued, postulated and interlinked with the rights jurisprudence in its various facets and forms. So, we start from:
- Rights of Transgender People – When we talk about the rights of the transgender person, the first thing that comes to my mind is the judgment in National Legal Services Authority v Union of India and Others,[62] in which the Indian Supreme Court embarked on developing the concept of human dignity on a jurisprudential basis, as a constitutional value. While recognising the right of transgender people to self-determination of their sex, the court explained the contours of human dignity in the following words:
‘The basic principle of the dignity and freedom of the individual is common to all nations, particularly those having democratic set up. Democracy requires us to respect and develop the free spirit of human being which is responsible for all progress in human history. Democracy is also a method by which we attempt to raise the living standard of the people and to give opportunities to every person to develop his/her personality. It is founded on peaceful co-existence and cooperative living. If democracy is based on the recognition of the individuality and dignity of man, as a fortiori we have to recognize the right of a human being to choose his sex/gender identity which is integral to his/her personality and is one of the most basic aspects of self-determination, dignity and freedom. In fact, there is a growing recognition that the true measure of development of a nation is not economic growth; it is human dignity.
More than 225 years ago, Immanuel Kant propounded the doctrine of free will, namely, the free willing individual as a natural law ideal. Without going into the detailed analysis of his aforesaid theory of justice (as we are not concerned with the analysis of his jurisprudence) what we want to point out is his emphasis on the “freedom” of human volition. The concepts of volition and freedom are “pure”, that is not drawn from experience. They are independent of any particular body of moral or legal rules. They are presuppositions of all such rules, valid and necessary for all of them.
Over a period of time, two divergent interpretations of the Kantian criterion of justice came to be discussed. One trend was an increasing stress on the maximum of individual freedom of action as the end of law. This may not be accepted and was criticised by the protagonist of “hedonist utilitarianism”, notably Bentham. This school of thought laid emphasis on the welfare of the society rather than an individual by propounding the principle of maximum of happiness to most of the people. Fortunately, in the instant case, there is no such dichotomy between the individual freedom/liberty we are discussing, as against public good. On the contrary, granting the right to choose gender leads to public good. The second tendency of the Kantian criterion of justice was found in reinterpreting “freedom” in terms not merely of absence of restraint but in terms of attainment of individual perfection. It is this latter trend with which we are concerned in the present case, and this holds good even today. As pointed out above, after the Second World War, in the form of the UN Charter and thereafter there is more emphasis on the attainment of individual perfection. In that united sense at least, there is a revival of the natural law theory of justice. Blackstone, in the opening pages in his “Vattelian Fashion” said that the principal aim of society “is to protect individuals in the enjoyment of those absolute rights which were vested in them by the immutable laws of nature’.[63]
Not only the constitutional courts but the transnational courts have given recognition to the gender identity of such persons, mostly in cases where transsexual persons started asserting their rights after undergoing sex reassignment surgery (SRS) of their re-assigned sex. In Christine Goodwin v United Kingdom,[64] the European Court of Human Rights, sitting as a Grand Chamber, examined an application alleging violation of Articles 8, 12, 13 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms 1997 in respect of the legal status of transsexuals in UK and particularly their treatment in the sphere of employment, social security, pensions and marriage. The applicant in that case had a tendency to dress as a woman from early childhood and underwent aversion therapy in 1963–64.
In the mid-1960s the applicant was diagnosed as a transsexual. Although she married a woman, and the couple had four children, her inclination was that her ‘brain sex’ did not fit her body. From that time until 1984, she dressed as a man for work but as a woman in her free time. In January 1985, the applicant began treatment at a gender identity clinic. In October 1986, she underwent surgery to shorten her vocal cords. In August 1987, she was accepted on to the waiting list for gender re-assignment surgery and later underwent that surgery at a National Health Service hospital. The applicant later divorced her former wife. She claimed that between 1990 and 1992 she had been sexually harassed by colleagues at work, followed by other human rights violations. After referring to various provisions and Conventions, the court held as follows:
‘Nonetheless, the very essence of the Convention is respect for human dignity and human freedom. Under Article 8 of the Convention in particular, where the notion of personal autonomy is an important principle underlying the interpretation of its guarantees, protection is given to the personal sphere of each individuals, including the right to establish details of their identity as individual human beings (see, inter alia, Pretty v. the United Kingdom No. 2346/02, judgment of 29 April 2002, 62, and Mikulic v. Croatia No. 53176/99, judgment of 7 February 2002, 53, both to be published in ECHR 2002). In the twenty first century the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society cannot be regarded as a matter of controversy requiring the lapse of time to cast clearer light on the issues involved. In short, the unsatisfactory situation in which post-operative transsexuals live in an intermediate zone as not quite one gender or the other is no longer sustainable. Domestic recognition of this evaluation may be found in the report of the Interdepartmental Working Group and the dissenting opinion of Lord Justice Thorpe in Court of Appeal’s judgment of Bellinger v. Bellinger, reported as EWCA Civ 1140 [2001].’[65]
In the case of Van Kuck v Germany[66] the Strasbourg Court (ECHR) dealt with the application, alleging that a German court’s decisions refusing the applicant’s claim for reimbursement of gender reassignment measures and the related proceedings were in breach of her rights to a fair trial and of her right to respect for her private life, and that they amounted to discrimination on the ground of her particular ‘psychological situation’. Reliance was placed on Articles 6, 8, 13 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms,1997. The court held that the concept of ‘private life’ covers the physical and psychological integrity of a person, which can sometimes embrace aspects of an individual’s physical and social identity.
For example, gender identifications, name and sexual orientation and sexual life fall within the personal sphere protected by Article 8. The court also held that the notion of personal identity is an important principle underlying the interpretation of various guaranteed rights and the very essence of the Convention, being respect for human dignity and human freedom, and protection is given to the right of transsexuals to personal development and to physical and moral security. Thus, the right to choose and the right to self-determination were accepted as a facet of human dignity.
It was also emphasised that in certain cases such as the case at hand (that of transgender people) recognition of this aspect of human dignity would yield happiness to the individuals and, at the same time, also be for the public good. We may, in this regard, also refer to few judgments of the US Supreme Court on the rights of transgender people’s freedom of expression. The Supreme Court of the State of Illinois in City of Chicago v Wilson et al[67] struck down the municipal law prohibiting cross-dressing, and held as follows:
‘the notion that the State can regulate one’s personal appearance, unconfined by any constitutional strictures whatsoever, is fundamentally inconsistent with values of privacy, self-identity, autonomy and personal integrity that... the Constitution was designed to protect right to self-determination and right to choose’.
In Doe v Yunits et al,[68] the Superior Court of Massachusetts upheld the right of a person to wear school dress that matched her gender identity as part of protected speech and expression, and observed as follows:
‘by dressing in clothing and accessories traditionally associated with the female gender, she is expressing her identification with the gender. In addition, Plaintiff’s ability to express herself and her gender identity through dress is important for her health and well-being. Therefore, Plaintiff’s expression is not merely a personal preference but a necessary symbol of her identity’.
- Rights of Convicts and those facing a Death Sentence – Advancement in conceptualising the doctrine of human dignity took place in the case of Shabnam v Union of India and Others,[69] in which the Indian Supreme Court went to the extent of protecting certain rights of death convicts by holding that they could not be executed till they had exhausted all available constitutional and statutory remedies. In the process, the court held:
‘This right to human dignity has many elements. First and foremost, human dignity is the dignity of each human being ‘as a human being’. Another element, which needs to be highlighted, in the context of the present case, is that human dignity is infringed if a person’s life, physical or mental welfare is harmed. It is in this sense torture, humiliation, forced labour, etc. all infringe on human dignity. It is in this context many rights of the accused derive from his dignity as a human being. These may include the presumption that every person is innocent until proven guilty; the right of the accused to a fair trial as well as speedy trial; right of legal aid, all part of human dignity. Even after conviction, when a person is spending prison life, allowing humane conditions in jail is part of human dignity. Prisons reforms or Jail reforms measures to make convicts a reformed person so that they are able to lead normal life and assimilate in the society, after serving the jail term, are motivated by human dignity jurisprudence.’[70]
In fact, this principle of human dignity has been used frequently by courts in the context of considering the death penalty itself. Back in the year 1972, the United States Supreme Court kept in mind this aspect in the case of Furman v Georgia.[71] The court, speaking through Brennan J, while considering the application of the Eighth Amendment’s prohibition of cruel and unusual punishments, summed up the previous jurisprudence on the Amendment as ‘prohibiting the infliction of uncivilized and inhuman punishments’. The State, even as it punishes, must treat its members with respect for their intrinsic worth as human beings. A punishment is ‘cruel and unusual’, therefore, if it does not comport with human dignity.
In Gregg v Georgia,[72] that very court, again through Brennan J, considered that the fatal constitutional infirmity in the punishment of death is that it treats ‘members of the human race as non-humans, as objects to be toyed with and discarded. (It is), thus, inconsistent with the fundamental premise of the clause that even the vilest criminal remains a human being possessed of common human dignity’. The Canadian Supreme Court, the Hungarian Constitutional Court and the South African Supreme Court have gone to the extent of holding that capital punishment constitutes a serious impairment of human dignity and imposes a limitation on the essential content of the fundamental rights to life and human dignity, and on that touchstone declaring that dignity unconstitutional.[73]
- Right of Choice – It is the flavour of human dignity jurisprudence only that has enabled the court to give rights to people to have individual choices, including those of self-fulfilment, autonomy and self-realisation. Examples are the judgments of the Indian Supreme Court in the cases of State of Maharashtra and Another v Indian Hotel and Restaurants Association[74] (bar dancers’ case) and Charu Khurana and Others v Union of India and Others[75] (female make-up artists in Bollywood), protecting women’s dignity. In the former case, the Supreme Court was confronted with a statute prohibiting girls from performing as dancers in hotels, restaurants and bar rooms. The court struck down such a legislation as impinging upon the right of such bar owners to carry on business [which is the right guaranteed under Article 19(1)(g) of the Constitution]. It was also held that it equally violates the rights of these bar dancers to choose a vocation or profession of their choice. After this judgment, another piece of legislation was passed by the State of Maharashtra, making it obligatory to obtain a licence for such performances.[76] As a matter of record, not a single licence was issued and all applications for licence were rejected on one ground or the other by the Executive. This started a second round of litigation. The Supreme Court, while upholding the statute in general, declared some of the provisions unconstitutional. Noting that the State proceeded to regulate with a heavy hand virtues outlining both legitimate business and the right of women to work. It is important to emphasise that the court showed how impoverished and hapless women can be helped constitutionally in order to protect their dignity, even when the State seems manifestly obsessed by a moral crusade against the vocation pursued by the bar girls. The Indian Supreme Court has recognised and protected the dignity even of prostitutes when they are subjected to rape, frowning upon female foeticide and honour killings.
- Rights of the Differently Abled – In international human rights law, equality is founded upon two complementary principles: non-discrimination and reasonable differentiation. The principle of non-discrimination seeks to ensure that all persons can equally enjoy and exercise all their rights and freedoms. Discrimination occurs due to the arbitrary denial of opportunities for equal participation. For example, when public facilities and services are set on standards out of the reach of persons with disabilities, it leads to exclusion and denial of rights. Equality not only implies preventing discrimination (for example, the protection of individuals against unfavourable treatment by introducing anti-discrimination laws) but goes beyond remedying discrimination against groups suffering systematic discrimination in society.
In concrete terms, it means embracing the notion of positive rights, affirmative action and reasonable accommodation. The move from the patronising and paternalistic approach to persons with disabilities represented by the medical model to viewing them as members of the community with equal rights has also been reflected in the evolution of international standards relating specifically to disabilities, as well as in moves to place the rights of persons with disabilities within the category of universal human rights.
In the interpretation of the right to equality, human dignity has played a very significant role. Many constitutions in the world – the Constitution of South Africa,[77] the Canadian Charter[78] and the Indian Constitution,[79] to name a few – contain a provision defining the right to equality. Alongside the general provision on equality under the law, discrimination is prohibited on a number of grounds,[80] including race, sex, colour and sexual preference. These provisions determine that the list is not a numerus clausus – a determination that raises difficult interpretational problems, two of which are important to our discussion.
The Supreme Court of South Africa, in the case of Carmichele v Minister of Safety and Security[81] and again in the case of NK v Minister of Safety and Security,[82] went on to rule that human dignity as a constitutional value influences the development of the common law. And indeed, when this common law is recognised, then judges have the duty to develop it, and if necessary modify it, so that it expresses constitutional values, including the constitutional value of human dignity. To the extent that the common law determines rights and duties between individuals, it might also limit the human dignity of one individual and protect the human dignity of the other.
But, here, two questions that come into our mind are: first, what should be the standard by which it should be determined when differentiation between people becomes discrimination? Secondly, what is the standard by which additional grounds for discrimination, beyond those expressly determined in the constitution, should be recognised?
Let us start with the answer that the South African Constitutional Court gave. The court in Prinsloo v Van der Linde[83] and subsequently in the famous case of President of the Republic of South Africa v Hugo[84] held that this standard is human dignity itself. Differentiation between people becomes discrimination if it violates human dignity, and additional types of differentiation are discriminatory if they violate human dignity. The Supreme Court of Canada also took a similar approach in Law v Canada.[85]
In Jeeja Ghosh and Another v Union of India and Others,[86] the Indian Supreme Court gave an elaborate answer by expanding the jurisprudential basis and discussing the global jurisprudence. The court outlined three models of dignity that have been already discussed. While locating the dimensions of the constitutional value of human dignity, which is beautifully illustrated by Justice Aharon Barak (Former President of the Israeli Supreme Court), the Supreme Court of India ruled in the following manner:
‘The constitutional value of human dignity has a central normative role. Human dignity as a constitutional value is the factor that unites the human rights into one whole. It ensures the normative unity of human rights. This normative unity is expressed in the three ways: first, the value of human dignity serves as a normative basis for constitutional rights set out in the Constitution; second, it serves as an interpretative principle for determining the scope of constitutional rights, including the right to human dignity; and third, the value of human dignity has an important role in determining the proportionality of a statute limiting a constitutional right.’[87]
Indian courts have shown due sensitivity to the needs of disabled persons so as to ensure that those with disabilities are also able to achieve their full potential free from such discrimination and harassment. For instance, in Jeeja Ghosh, the petitioner, who was suffering from cerebral palsy, was an eminent activist involved in disability rights. On 19 February 2012, she was scheduled to fly from Kolkata to Goa, where she was going to attend an international conference on disability issues. After being seated on the flight, she was deplaned on the pretext that, due to her disability, she could not be allowed to fly to Goa. The action of the airline was found to be illegal and in violation of civil aviation requirements issued by the regulator. According to the court, the aforesaid scenario violated the principle of human dignity, and it was thus held that:
‘All these rights conferred upon such persons send an eloquent message that there is no question of sympathizing with such persons and extending them medical or other help. What is to be borne in mind is that they are also human beings and they have to grow as normal persons and are to be extended all facilities in this behalf. The subject of the rights of persons with disabilities should be approached from human rights perspective, which recognized that persons with disabilities were entitled to enjoy the full range of internationally guaranteed rights and freedoms without discrimination on the ground of disability. This creates an obligation on the part of the State to take positive measures to ensure that in reality persons with disabilities get enabled to exercise those rights. There should be insistence on the full measure of general human rights guarantees in the case of persons with disabilities, as well as developing specific instruments that refine and given detailed contextual content of those general guarantees.’[88]
- Freedom of Speech/Reputation of the Individual – The right to enjoyment of private reputation is again founded on human dignity, which was so recognised in the decision of the Supreme Court of Alabama in the famous case of DF Marion v Davis[89] in the following words:
‘The right to the enjoyment of a private reputation, un-assailed by malicious slander is of ancient origin, and is necessary to human society. A good reputation is an element of personal security and is protected by the Constitution equally with the right to the enjoyment of life, liberty and property.’
This decision forms the founding principle of the decision of various constitutional Courts across the globe. For instance, the Indian Supreme Court recognised it in Smt Kiran Bedi v Committee of Inquiry and Another.[90] Again, in a ground-breaking judgment in Devidas Ramachandra Tuljapurkar v State of Maharashtra and Others,[91] the court did not accept the defence predicated on freedom of speech, when the poem titled ‘Gandhi Mala Bhetala’ (‘I met Gandhi’) violated the dignity of the Father of the Nation. The court refused to quash the first information report lodged against the poet under Section 292 of the Indian Penal Code (i.e. Obscenity) and in the process took note of a test laid down by the European Court of Human Rights (ECHR) in Vereinigung Bildender Kiinstler v Austria,[92] in which the court tried to balance human dignity and right of speech in the following manner:
‘In our opinion, it was not the abstract or indeterminate concept of human dignity – a concept which can in itself be dangerous since it may be used as justification for hastily placing unacceptable limitations on fundamental rights – but the concrete concept of “fundamental personal dignity of others” which was central to the debate in the present case, seeing that a photograph of Mr Meischberger was used in a pictorial montage which he felt to be profoundly humiliating and degrading.’[93]
On that basis, the court accepted the plea that artistic freedom outweighs personal interest and cannot and does not trump or outweigh observance of laws for the prevention of crime or laws for the protection of health or morals; that the limits of artistic freedom are exceeded when the image of a person (renowned or otherwise) is substantially deformed by wholly imaginary elements – without it being evident from the work (in the present case from the poem) that is aimed at satire or some other form of exaggeration.
The freedom of artistic creation cannot be claimed where the work in question constitutes a debasement and debunking of a particular individual’s public standing; that even the European law recognises that whosoever exercises freedom of expression undertakes in addition duties and responsibilities and their scope depends on the situation and the means used; that it is only where personal interests of an individual are said to be affected that the artistic and satirical nature of the portrayal of the person in the work would outweigh mere personal interest; that the nature, meaning and effect of any image (say, in a painting or a poem) cannot and must not be judged on the basis of what the artist (or author) purports to convey; what counts is the effect of the image on the observer; the fact that an image has been produced by an artist does not always make the end-result artistic; likewise, an image does not become satirical if the observer does not comprehend or detect any message in the work in question; that where the images depicted in the work product convey no message but ‘only a disgusting combination of lewd acts and words whose only effect is to debase, insult and ridicule the person portrayed’ – this is neither criticism nor satire; and that the artistic freedom is not unlimited and where rights and reputation of others are involved; and the conclusion thus is that where there is conflict with human dignity, artistic freedom must always be subordinated to personality rights.
- Right to Privacy – The concept of privacy was developed and expanded further in K Puttuswamy and Another v Union of India and Others,[94] which is a recent ground-breaking judgment recognising dignity as a facet of the right to privacy. Here, the Indian Supreme Court held that privacy postulates the reservation of a private space for an individual described as the right to be let alone as a concept founded on autonomy of the individual. In this way, the right to privacy has been treated as a postulate of human dignity itself. Dr Justice DY Chandrachud, the present Chief Justice of India, who delivered the leading opinion on behalf of himself and three other judges, discussed the essential nature of privacy rights as follows:
‘What, then, does privacy postulate? Privacy postulates the reservation of a private space for the individual, described as the right to be let alone. The concept is founded on the autonomy of the individual. The ability of an individual to make choices lies at the core of the human personality. The notion of privacy enables the individual to assert and control the human element which is inseparable from the personality of the individual. The inviolable nature of the human personality is manifested in the ability to make decisions on matters intimate to human life. The autonomy of the individual is associated over matters which can be kept private. These are concerns over which there is a legitimate expectation of privacy. The body and the mind are inseparable elements of the human personality. The integrity of the body and the sanctity of the mind can exist on the foundation that each individual possesses an inalienable ability and right to preserve a private space in which the human personality can develop. Without the ability to make choices, the inviolability of the personality would be in doubt.
Recognizing a zone of privacy is but an acknowledgment that each individual must be entitled to chart and pursue the course of development of personality. Hence privacy is a postulate of human dignity itself. Thoughts and behavioural patterns which are intimate to an individual are entitled to a zone of privacy where one is free of social expectations. In that zone of privacy, an individual is not judged by others. Privacy enables each individual to take crucial decisions which find expression in the human personality. It enables individuals to preserve their beliefs, thoughts, expressions, ideas, ideologies, preferences and choices against societal demands of homogeneity. Privacy is an intrinsic recognition of heterogeneity, of the right of the individual to be different and to stand against the tide of conformity in creating a zone of solitude. Privacy protects the individual from the searching glare of publicity in matters which are personal to his or her life. Privacy attaches to the person and not to the place where it is associated. Privacy constitutes the foundation of all liberty because it is in privacy that the individual can decide how liberty is best exercised. Individual dignity and privacy are inextricably linked in a pattern woven out of a thread of diversity into the fabric of a plural culture.
Privacy of the individual is an essential aspect of dignity. Dignity has both an intrinsic and instrumental value. As an intrinsic value, human dignity is an entitlement or a constitutionally protected interest in itself. In its instrumental facet, dignity and freedom are inseparably intertwined, each being a facilitative tool to achieve the other. The ability of the individual to protect a zone of privacy enables the realization of the full value of life and liberty. Liberty has a broader meaning of which privacy is a subset. All liberties may not be exercised in privacy. Yet others can be fulfilled only within a private space. Privacy enables the individual to retain the autonomy of the body and mind. The autonomy of the individual is the ability to make decisions on vital matters of concern to life. Privacy has not been couched as an independent fundamental right. But that does not detract from the constitutional protection afforded to it, once the true nature of privacy and its relationship with those fundamental rights which are expressly protected is understood.
Privacy lies across the spectrum of protected freedoms. The guarantee of equality is a guarantee against arbitrary State action. It prevents the State from discriminating between individuals. The destruction by the State of a sanctified personal space whether of the body or of the mind is violative of the guarantee against arbitrary State action. Privacy of the body entitles an individual to the integrity of the physical aspects of personhood. The intersection between one’s mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right, and the freedom of self-determination. When these guarantees intersect with gender, they create a private space which protects all those elements which are crucial to gender identity. The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual. Above all, the privacy of the individual recognizes an inviolable right to determine how freedom shall be exercised. An individual may perceive that the best form of expression is to remain silent. Silence postulates a realm of privacy. An artist finds reflection of the soul in a creative endeavour. A writer expresses the outcome of a process of thought. A musician contemplates upon notes which musically lead to silence. The silence, which lies within, reflects on the ability to choose how to convey thoughts and ideas or interact with others. These are crucial aspects of personhood.’[95]
- Right to Die by Means of Passive Euthanasia – The concept of dignity pertaining to passive euthanasia took a leap forward in the case of Common Cause v Union of India.[96] Though this right was earlier recognised in Aruna Ramachandra Shanbaug v Union of India and Others,[97] a completely new dimension was given to this right, based on freedom of choice which is to be given to an individual accepting his dignity. While discussing dignity in euthanasia, the three models of dignity (theological, philosophical and constitutional) models were highlighted. Thereafter, postulates of dignity have been explained in the following manner:
‘Professor Ronald Dworkin, being a philosopher-jurist, was aware of the idea of a constitution and of a constitutional right to human dignity. In his book, Taking Rights Seriously, he noted that everyone who takes rights seriously must answer the question why human rights vis-à-vis the State exist. According to him, in order to give such an answer, one must accept, as a minimum, the idea of human dignity. As he writes:
‘Human dignity… associated with Kant, but defended by philosophers of different schools, supposes that there are ways of treating a man that are inconsistent with recognizing him as a full member of the human community, and holds that such treatment is profoundly unjust.’[98]
In his book, Is Democracy Possible Here?[99] Dworkin further develops two principles about the concept of human dignity. The first principle regards the intrinsic value of every person viz. every person has a special objective value which value is not only important to that person alone but success or failure of the lives of every person is important to all of us. The second principle, according to Dworkin, is that of personal responsibility. According to this principle, every person has the responsibility for success in his own life and, therefore, he must use his discretion regarding the way of life that will be successful from his point of view. Thus, Dworkin’s jurisprudence of human dignity is founded on the aforesaid two principles which, together, not only define the basis but the conditions for human dignity. Dworkin went on to develop and expand these principles in his book, Justice for Hedgehogs (2011).[100]
When speaking of rights, it is impossible to envisage them without dignity. In his pioneering and all-inclusive Justice for Hedgehogs, he proffered an approach where respect for human dignity, entails two requirements; first, self-respect i.e. taking the objective importance of one’s own life seriously; this represents the free will of the person, his capacity to think for himself and to control his own life and second, authenticity i.e. accepting a “special, personal responsibility for identifying what counts as success” in one’s own life and for creating that life “through a coherent narrative” that one has chosen.[101] According to Dworkin, these principles form the fundamental criteria supervising what we should do in order to live well.[102] They further explicate the rights that individuals have against their political community,[103] and they provide a rationale for the moral duties we owe to others. This notion of dignity, which Dworkin gives utmost importance to, is indispensable to any civilized society. It is what is constitutionally recognised in our country and for good reason. Living well is a moral responsibility of individuals; it is a continuing process that is not a static condition of character but a mode that an individual constantly endeavors to imbibe. A life lived without dignity, is not a life lived at all for living well implies a conception of human dignity which Dworkin interprets includes ideals of self-respect and authenticity.’[104]
Part V: Forces that are Endangering Human Dignity
‘For ours is a battle not for wealth or for power. It is a battle for freedom. It is the battle of reclamation of human personality.’
– Dr BR Ambedkar
[61] Let me elaborate upon the forces that pose constant threat to human dignity. I will start with forced migration and refugees, who prima facie hold evidence of an abuse of human dignity and vulnerability. We live at a time when there is a global crisis of displacement, there are more forced migrants today than at any time since the Second World War, and the drivers of displacement are becoming ever more complex. More than 60 million people (half of whom are children) are victims of this forced displacement caused by wards, violence, human rights abuse and rising tension over identity, ethnicity, religion and politics.[105] Many of these migrants enter refugee camps that are in a deplorable condition or live on the margins of overcrowded cities in the developing world, which only leads to their exploitation in various forms. They are also deprived of basic amenities and suffer from chronic hunger. Even in Europe, over time these camps become permanent settlements with little to no basic amenities that are essential to living a dignified life. Refugees are frequently deprived of their rights and abandoned to clandestinity and even death.
[62] Another threat to human dignity is the lack of basic human facility, which is essential for survival, namely: food. The right to food is the right of every fellow human being to live with dignity, therefore severe hunger not only endangers life, but may also rob both the living and the dying of their dignity. Eliminating hunger is not just a humanitarian necessity and a fulfilment of international legal duties involving the right to food; it also makes economic sense. We should firmly believe that it is the responsibility of humanity to ensure that everyone has the right to food.
[63] A vital facet of threat to dignity is slavery. Dignity is closely related to the abolition of slavery, torture and other inhumane and degrading practices. Indeed, the gap-filling role fulfilled by dignity[106] with regard to slavery is a typical function of universal legal principles. The ruling made by a Trial Chamber of the International Criminal Court (ICC) in Katanga[107] and the well-known verdict of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in Kunarac[108] provide vital confirmation of the aforementioned.
[64] In both cases, the issue of enslavement arose and, in both cases, enslavement – as it occurred in Rantsev and Siliadin[109] – was viewed as not indicating ownership in the literal sense: that is, as the ‘acquisition’ or ‘disposition’ of humans for monetary or other recompense. In Katanga, based on the premise that ownership can take many forms, including ‘a situation of dependence that deprives [the individual] of any form of autonomy’, the ICC explicitly concluded that ‘the use of threats, force or other forms of physical or mental coercion, the exaction of forced labour, the exertion of psychological pressure, the victim’s vulnerability and the socioeconomic conditions in which the power is exercised may also be taken into account’.[110]
[65] Another issue that poses serious challenge to the very notion of human dignity is that of manual scavenging, which has probably been one of the major tragedies afflicting the developing countries for decades. The disgusting practice undermines not only the dignity of humans, but the health of our sanitation personnel. In Indian society, the existence of the practice reinforces other societal ills, such as prejudice and casteism.[111] The Indian Supreme Court is seised of this problem in a public interest litigation case[112] where orders are even passed for abolition of this mode of scavenging. However, in reality, abolition of this practice has still not taken place. The time has come for us to get rid of this disgusting practice and for real change to occur, new laws and provisions for stringent punishment would not suffice; change in perceptions within agencies and at the societal level is required, and caste barriers need to be actively broken. Unless systemic problems are dealt with first, new laws will only be a façade, and annihilation of the practice of manual scavenging would not be possible.
[66] As I said earlier, there are so many other factors challenging human dignity, but I would pick up, lastly, the menace of war, which is the biggest threat to human dignity. War, which is defined as a protracted conflict between political communities, is also a moral wrong.[113] Moreover, the classification and, in most cases, the dehumanisation of enemies go hand in hand with conflict. Adversaries are no longer regarded as distinct human beings but rather as antagonists who may be slain at will. War leads to death of humans, including civilians, torture, rape and sexual assaults on women and children outraging their dignity. It can take a generation or more to recover from the social disturbances of war and to re-establish a strong peace between former fighters and their successors, depending on the intensity of the conflict and the number of atrocities committed. There cannot be a better example of expressing this suffering than the following phrase, carved out in a concentration camp cell by a Jewish prisoner: ‘if there’s God, He will have to beg my forgiveness’. It is the best argument necessitating the abolition of war for the existence of human dignity. After all, we are here to heal and not to hurt, to love and not to hate and to create and not to destroy the humanity. If one looks all beings as part of Almighty (going back to theological model of dignity), the impurities of the mind, i.e. jealousy, contempt, grudge, malice, mistrust, suspicion, etc along with ego will vanish and love and happiness will blossom.
Conclusion
[67] In conclusion, I would like to say that this typology of dignity narrated by me is not a ‘final study of our linguistic forms’, to paraphrase one of the greatest abstract thinkers of the twentieth century: Ludwig Wittgenstein.[114] In contrast to conventional attempts at defining dignity, the suggested framework does not provide a fundamental, stable or permanent notion of the term. Instead, it employs empirical evidence to acknowledge that the concepts and functions of dignity are dynamic and context dependent. Knowing how the court invokes dignity in reality, as opposed to in the abstract, is the foundation of this typology and enables it to preserve the flexibility to adapt to evolutions and changes in the employment of dignity.
[68] In charting the territory of our present discourse on dignity, the typology brings the judicial functions of dignity into sharper focus. It illustrates the settings in which the various constitutional court(s) deploys dignity to safeguard substantive interests, as well as the ways in which the court’s perception of dignitary injuries reshapes certain legal theories. By demonstrating that a set of pluralistic ideals frequently underpin the court’s use of dignity, this article provides consistency to what could otherwise appear unclear, imprecise, or even confusing usage of the word. Furthermore, the typology gives us the means to assess what is at risk, normatively and doctrinally, in a range of settings; it enables us to identify the role of dignity in doctrinally transformational times; and it provides a platform for future conversations.
[69] I think that I have been able to demonstrate the growing significance of human dignity jurisprudence in the world of ascending human rights in as much as in the last few years certain rights have been created and recognised as fundamental rights in an ever-expanding and ascending jurisprudence of human rights. I may only add that it is a ‘work in progress’ and with the changing notions of morality, democratic values and social challenges, we may see further expansion of such human rights in future.
[70] I end this lecture by saying that, if some were to argue the question ‘Why are human rights valid?’ jurisprudentially, the answer would be that it has roots in human dignity which provides justification for human rights. This story of human rights, from its inception hundreds of years ago, and finding its roots in ‘dignity’, is beautifully summed up by Professor Dr A Lakshminath and Dr Mukund Sarda in their article ‘From Human Rights to Human Dignity – An Unending Story’[115] in the following words:
‘From exploitation to exploration
From exploration to proclamation
From proclamation to declaration
From declaration to protection
From protection to perfection’.
[1] P Springboard, The Cambridge Companion to Hobbes’ Leviathan (Cambridge University Press, 2007) (P Springboard ed).
[2] Jean Hampton, ‘Democracy and the Rule of Law’ (1994) 36 NOMOS 13–44.
[3] For detailed discussion of such transformation, see Hampton, ‘Democracy and the Rule of Law’ in The Rule of Law (NYU Press, 1995) (Ian Shapiro ed).
[4] Yet another interesting route is adopted by Francis Fukuyama, who finds the origin of democracy in dignity. According to his hypothesis, dignity is a universal aspect of human personality that craves recognition. Later, it evolves by raising the moral valuation of the inner self over that of outer society and, in modern times, transcending to a state in which the concept of dignity encompasses recognition not just of a narrow class of people but of everyone. This broadening and universalisation of dignity turns the private quest for self into a political project. This shift was projected by philosophers such as Immanuel Kant and Friedrich Hegel. Hegel based his hypothesis on the great conflict of his day: the French Revolution and its enshrining of the rights of man, which culminated in the idea of universal recognition. This paved the way for a liberal democratic regime based on individual rights enshrining the notion of equal dignity in law by recognising citizens as moral agents capable of sharing in their own self-government. Thus the democratic surge that unfolded more than two centuries after the French Revolution was brought about by people demanding recognition of their political personhood, saying that they were moral agents capable of sharing in political power. See Francis Fukuyama, Identity: Contemporary Identity Politics and the Struggle for Recognition (Profile Books Limited, London, 2019).
[5] A principle recently brought to the fore by the European Union in the preamble to its Charter of Fundamental Rights: ‘[the Union] places the individual at the heart of its activities’.
[6] P Haberle, Europäische Verfassungslehre 6th ed, Nomos, Baden-Baden, 2009) 289.
[7] P Haberle, ‘Zeit und Verfassungskultur’ in Rechtsvergleichungim Kraftfeld des Verfassungsstaates (Peter Haberle ed, 1992) 627–672.
[8] L Weinrib, ‘Human Dignity as a Right-Protecting Principle’ (2004) Na’l J Const L 325–345.
[9] For a more detailed discussion of these critiques, see M Neal, ‘“Not Gods but Animals’: Human dignity and Vulnerable Subjecthood’ (2013) 23(3) Liverpool L Rev 177–200.
[10] R Brownsword and D Beyleveld, ‘Human Dignity, Human Rights and Human Genetics’ (1998) 5 Modern Law Review 661–680.
[11] Mirko Bagaric and James Allen, ‘The Vacuous Concept of Dignity’ (2006) 5 of Human Rights 257–270; see also S Grover, ‘A response to Bagaric and Allan’s “The Vacuous Concept of Dignity”’ (2009) 13 Intl J of Human Rights 615–622.
[12] For a discussion of dignity as a ‘two-edged sword’, see D Feldman, ‘Human Dignity as a Legal Value, Part I’ (1999) Public Law 685; for discussion of dignity as having ‘completely opposing connotations’, see W Binchy, ‘Dignity as a Constitutional Concept’ in The Irish Constitution: Governance and its Values (E Carolan and O Doyle eds, 2008) 307–326.
[13] C McCrudden, ‘Human Dignity and Judicial Interpretation of Human Rights’ (2008) 19 Eur J Intl L 655–724.
[14] R Dworkin, ‘Dignity’. in Justice for Hedgehogs (The Belknap Press of Harvard University Press, Cambridge, Massachussetts, 2011) 191–219.
[15] Margareta Broberg, ‘A Brief Introduction’ in Dignity, Ethics and Law (Copenhagen: Centre for Ethics and Law, Margareta Broberg and JB Ladegaard Knox eds, 1999) 7–8.
[16] The Oxford English Dictionary contains five definitions of ‘dignity’: The New Shorter Oxford English Dictionary (Clarendon Press, Lesley Brown ed, 1993). See also Aurel Kolnai, ‘Dignity’ (1976) 51 Philosophy 251; and Gloria L Zuniga, ‘An Ontology of Dignity’ (2004) 5 Metaphysica 115.
[17] Hans-Georg Gadamer, Truth and Method (John Weinsheimer and Donald G Marshall trans, 2nd rev ed, Continuum, 2004) (1960) 300.
[18] Ruth Macklin, ‘Dignity Is a Useless Concept’ (2003) 327 BMJ 1419. See also Suzy Killmister, ‘Dignity: Not Such a Useless Concept’ (2010)36 J Med Ethics160 (challenging Macklin’s claim that dignity is ‘a useless concept’ and arguing that dignity can ‘serve as a guiding principle in medical ethics’); and Steven Pinker, ‘The Stupidity of Dignity’, New Republic, 28 May 2008, 28, 31.
[19] William A Parent, ‘Constitutional Values and Human Dignity’ in The Constitution of Rights: Human Dignity and American Values (Michael J Meyer and William A Parent eds, 1992) 145; see also Christopher McCrudden, ‘Human Dignity and Judicial Interpretation of Human Rights’ (2008) 19 Eur J Intl L 655, 664–67 (examining the use of dignity in national constitutions, international texts and the Charter of the United Nations).
[20] Ludwig Wittgenstein, Philosophical Investigations (GEM Anscombe trans, 3rd ed, 1968) para 91. Wittgenstein’s linguistic theory differentiates between natural languages, such as English, and purely referential languages, such as geometry. In geometry, words can have fixed, core meanings. A ‘circle’, for example, is a set of co-planar points equidistant from a single point.
[21] Ibid, para 43.
[22] Ibid, para 66.
[23] Guaranty Trust Co v York, 326 US 99, 108 (1945).
[24] See n 9 above, at para 66. Chess and the children’s game ‘Go Fish’ share ‘many common features’. Both involve rules and include an element of winning or losing—but there are also key differences. Chess involves skill; arguably, ‘Go Fish’ does not. ‘Go Fish’ is amusing; arguably, chess is not. As my colleague Max Stearns rightly pointed out to me, one might also consider ‘game theory’, which, unlike the other examples, does not include any sense of recreation or fun. The game of ‘chicken’, for instance, is anxiety provoking and deadly.
[25] Ibid, para 67.
[26] Members of a family may share certain features such as eye colour or build, but the family is not defined by any single characteristic.
[27] Wittgenstein (n 21 above) para 66.
[28] See In re Yamashita, 327 US 1, 29 (1946) (Murphy J dissenting). See, eg, GRUNDGESETZ FÜR DIE BUNDESREPUBLIK DEUTSCHLAND [GRUNDGESETZ] [GG] [BASIC LAW], 23 May 1949, BGBL I, art 1(1) (Ger) (stating that ‘human dignity shall be inviolable’ under German law).
[29] Universal Declaration of Human Rights, GA Res 217 (III) A, UN Doc A/RES/217(III), art 1 (10 Dec 1948) (stating that ‘[a]ll humans are born free and equal in dignity and rights’).
[30] See n 5 above, at 299.
[31] Alan Gewirth, ‘Human Dignity as the Basis of Rights’ in The Constitution of Rights: Human Dignity and American Values (Michael J Meyer and William A Parent eds, 1992) 67, 71. See also Dworkin, Justice For Hedgehogs (n 15 above) 191–218 and 255–275 (exploring the meaning of ‘dignity’).
[32] Daniel P Sulmasy, ‘Dignity and Bioethics: History, Theory, and Selected Applications’ in Human Dignity And Bioethics: Essays Commissioned by The President’s Council on Bioethics (2008) 469. Proponents argue that individuals with prolonged suffering at the end of their lives experience a loss of dignity that warrants physician-assisted suicide. See Jyl Gentzler, ‘What Is Death with Dignity?’ (2003) 28 J Med & Phil 461-480 (exploring the ways in which advocates of physician-assisted suicide invoke dignity). By contrast, opponents contend that the practice fails to properly respect the dignity of human life in every form. See Leon R Kass, ‘Defending Human Dignity’ in Human Dignity And Bioethics (n 33 above) at 297 and 304–305 (explaining that those who reject physician-assisted suicide do so because ‘every still-living human being, regardless of condition’ has dignity).
[33] Helga Kuhse, ‘Is There a Tension Between Autonomy and Dignity?’ in Bioethics And Biolaw (Peter Kemp et al eds, 2000) 61, 72. Echoing a similar sentiment, South African law professor and judge Dennis Davis has remarked that dignity is ‘a piece of jurisprudential Legoland–to be used in whatever form and shape is required by the demands of the judicial designer’ (DM Davis, ‘Equality: The Majesty of Legoland Jurisprudence’ (1999) 116 S Afr LJ398, 413.
[34] Though western thinking is that the concept of human dignity has a history spanning 2,500 years, in many eastern civilisations, including India, human dignity as a core human value was recognised many thousands of years ago.
[35] Aharon Barak, Human Dignity – The Constitutional Value and the Constitutional Right (Cambridge University Press, 2015).
[36] SD Sharma, Administration of Justice in Ancient Bharat (1988).
[37] Based on the approach of Thomas Aquinas (1225–74). See Thomas Aquinas, Summa Theologia (Ave Maria Press, 1948).
[38] See Toman E Hill, Humanity as an End in itself (1980) 91 Ethics 84.
[39] See Immanuel Kant, Critique of Practical Reason (Dover Publications Inc, 2004); Immanuel Kant, Groundwork to a Metaphysics of Morals (Mary J Gregor Christine and M Korsgaard eds, Cambridge University Press, 1998).
[40] See Dietmar von der Pfordten, ‘On the Dignity of Man’, in Kant (Cambridge University Press, 2009) 329, 371–391.
[41] Georg Wilhelm Friedrich Hegel, The Phenomenology of Spirit (Oxford University Press, 1979).
[42] Jeremy Waldron, ‘How Law Protects Dignity’ (2012) 71(1) Cambridge LJ 200–222.
[43] Ibid,202.
[44] Bruce Ackerman, Revolutionary Constitutions: Charismatic Leadership and the Rule of Law (Harvard University Press. 2019).
[45] Although, much before that, dignity as an inviolable right was recognised in the US Constitution.
[46] Fukuyama (n 5 above).
[47] Ibid; see also n 38 above.
[48] DK Basu v State of West Bengal (1997) 1 SCC 416.
[49] Sunil Batra v Delhi Administration (1980) 3 SCC 488.
[50] Miranda v. Arizona, 16 L Ed 2d 694; 384 US 436 (1965).
[51] Ibid, US 444–445: (L Ed 706–707).
[52] Escobedo v. Illinois, 12 L Ed 2d 977; 378 US 478 (1963).
[53] Ibid, 457–458; see also Miranda case, 16 L Ed 2d 694 at 713–714.
[54] Smt Selvi and Others v State of Karnataka (2010) 7 SCC 263.
[55] See Professor Sutherland, Crime and Confession (1965) 79 Harvard L Rev.
[56] Ibid, para 1.
[57] Prem Shankar Shukla v Delhi Administration (1980) 3 SCC 526.
[58] Ibid, para 1.
[59] Ibid, para 21.
[60] Bandhua Mukti Morcha v Union of India (1984) 3 SCC 161.
[61] Ibid, para 10.
[62] National Legal Services Authority v Union of India and Others (2014) 5 SCC 438.
[63] Ibid, paras 106–108.
[64] Christine Goodwin v United Kingdom, No 28957/95, judgment dated 11.7.2002.
[65] Ibid, para 90.
[66] Van Kuck v Germany, No 35968/97, judgment dated 12.9.2003.
[67] City of Chicago v Wilson et al, 75 III 2d 525 (1978).
[68] Doe v Yunits et al, 2000 WL 33162199 (Mass Supr).
[69] Shabnam v Union of India and Others, (2015) 6 SCC 702.
[70] Ibid, para 15.
[71] Furman v Georgia, 408 US 238 (1972).
[72] Gregg v Georgia, 428 US 153 (1976).
[73] See n 55 above, para 16.
[74] State of Maharashtra and Another v Indian Hotel and Restaurants Association (2013) 8 SCC 519.
[75] Charu Khurana and Others v Union of India and Others (2015) 1 SCC 192.
[76] The Maharashtra Prohibition of Obscene Dance in Hotels, Restaurants and Bar Rooms and Protection of Dignity of Women (Working Therein) Act.
[77] Article 9 of the Constitution of South Africa.
[78] Artice 15 of the Canadian Charter.
[79] Articles 14 and 21 of the Indian Constitution. See also Arts 16 and 17.
[80] See Art 9(3) of the Constitution of South Africa and Art 15(1) of the Canadian Charter.
[81] Carmichele v Minister of Safety and Security, 2001(4) SA 938 (CC), para 54.
[82] NK v Minister of Safety and Security, 2005(6) SA 419 (CC).
[83] Prinsloo v Van der Linde, 1997 (3) SA 101 (CC).
[84] President of the Republic of South Africa v Hugo, 1997 (4) SA 1 (CC).
[85] Law v Canada [1999] 1 SCR 497.
[86] Jeeja Ghosh and Another v Union of India and Others (2016) 7 SCC 761.
[87] Ibid, paras 37–38.
[88] Ibid, para 43.
[89] DF Marion v Davis, 10 55 ALR 171.
[90] Smt Kiran Bedi v Committee of Inquiry and Another (1989) 1 SCC 494.
[91] Devidas Ramachandra Tuljapurkar v State of Maharashtra and Others (2015) 6 SCC 1.
[92] Vereinigung Bildender Kiinstler v Austria, No 68354 of 2001, decided on 25.1.2007 (ECHR).
[93] Ibid, para 9.
[94] K Puttuswamy and Another v Union of India and Others (2017) 10 SCC 1.
[95] Ibid, paras 297–298.
[96] Common Cause v Union of India (2018) 5 SCC 1.
[97] Aruna Ramachandra Shanbaug v Union of India and Others (2011) 4 SCC 454.
[98] Ronald Dworkin, Taking Rights Seriously (Duckworth, 1977) 239.
[99] Ronald Dworkin, Is Democracy Possible Here? Principles for a New Political Debate (Princeton University Press, 2006).
[100] Dworkin, Justice for Hedgehogs (n 15 above).
[101] Kenneth W Simons, Dworkin’s Two Principle of Dignity: An Unsatisfactory Non-Consequentialist Account of Interpersonal Moral Duties (2010) 90 Boston L Rev 715.
[102] See n 100 above.
[103] See n 101 above.
[104] See n 97 above, paras 295–297.
[105] Gil Loescher, ‘Human Rights and Forced Migration’ in Human Rights: Politics and Practice (Michael Goodhart ed, Oxford University Press, 3rd edn, 2016) 312.
[106] Understood as a minimum standard of treatment for individuals placed under the power of public authorities or other private individuals.
[107] Situation in the Democratic Republic of the Congo in the Case of The Prosecutor v. Germain Katanga (Judgment pursuant to article 74 of the Statute) ICC-01/04-01/07 (7 March 2014).
[108] Prosecutor v Dragoljub Kunarac Radomir Kovac and Zoran Vukovic (Judgment) IT-96-23-T& IT-96-23/1-T (22 February 2001).
[109] Katanga (n 108 above), para 975.
[110] Ibid, para 976 (italics added); in this affair the Court was called upon to rule on a case of sexual slavery.
[111] Parnika Goswami and Vrinda Nargas, ‘Manual Scavenging: Dignity Down the Drain’ (The Contemporary Law Forum,7 May 2021) (available at: https://tclf.in/2021/05/07/manual-scavenging-dignity-down-the-drain [accessed on 4th March 2023].
[112] Safai Karmachari Andolan and Others v Union of India and Others, 2014 (3) AWC 2835 (SC).
[113] JS Levyand WR Thompson, Causes of War (Wiley-Blackwell, Chichester, 2010).
[114] See Wittgenstein (n 21 above), para 91 (GEM Anscombe trans, 3rd edn, 1968).
[115] A Lakshminath and Mukund Sarda, From Human Rights to Human Dignity – An Unending Story (2015) 5 CNLU LJ 16.