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(De)Valuing Dignity

Three Risks of Dignity Inflation in the Indian Supreme Court’s Reasoning

Pritam Baruah (pbaruah@jgu.edu.in) teaches law at O P Jindal Global University, Sonipat.

The Supreme Court of India holds dignity to be a foundational constitutional value. Judicial enthusiasm about dignity must, however, be sensitive to the risk of devaluing it in the absence of close legal analysis. Three such risks are identified here. First, the constitutional status of dignity is unclear. Is it a right under Article 21 or a value underlying fundamental rights? The choice has significant interpretive implications. Second, does dignity guarantee a minimum standard of life, or does it refer to human flourishing entailing extensive state obligations? Third, can dignity be understood as a source of limiting rights as held in the Aadhaar decision?

The author thanks Akruti Ramchandran and Raja Venkata Krishna Dandamudi for excellent research assistance. The article has benefited from discussions at Ambedkar University, Delhi; Academia Sinica, Taiwan; Asian Law Institute Signature Conference 2018, Seoul; and IVR Annual Conference 2019, University of Lucerne.

Human dignity is beyond definition. It may at times defy des­c­ription. To some, it may seem to be in the world of abstraction and some may even perversely treat it as an attri­bute of egotism or accentuated ecc­e­n­tricity ... Dignity speaks, it has its sound, it is natural and human. It is a combination of thought and feeling.

— Justice Dipak Misra, Common Cause (A Regd Society) v Union of India and Anr (2018: para 156)

 

Former Chief Justice of India (CJI) Dipak Misra’s words illustrate judicial irony about dignity. Judges hold it to be a foundational constitutional justification despite its admittedly indeterminate nature. It is ironical that metaphors, instead of law and logic, figure prominently in applying the concept. Indeterminacy ordinarily invites scepticism in judicial decision-making, as judicial decisions are expected to “justify” their conclusions when litigants disagree. As Ludwig Wittgenstein pointed out, justifications arise from firmer ground than the reasons for which people disagree (Wittgenstein 1969: 97, 99, 104). The indeterminacy of dignity thus makes it shakier, rather than it being firm grounds for justification. Despite its indeterminacy, dignity is almost ubiquitous in the Indian constitutional law. Recent decisions on the right to privacy, euthanasia, criminalisation of consensual homosexual practices, rights of transgender persons, and Aadhaar uninhibitedly invoke ­human dignity. This follows an established tradition of the Supreme Court of India where it draws upon the concept of dignity in cases involving fundamental rights.

This essay argues that judicial enthusiasm about dignity is not misplaced, but the concept must be used cautiously. Courts should avoid casual application of the value, which would devalue its justificatory potential; instead, they should construct a careful judicial ­doctrine of ­human dignity. I identify three reasons for why the widespread application of dignity in Indian constitutional discourse runs the risk of devaluing it. First, the constitutional status of dignity is unclear. Is it a right under ­Article 21 (right to life and personal liberty), or a value that provides meaning to Article 21, or a value that underlies all fundamental rights? Each of these choices has significant constitutional implications. Second, the scope of dignity is ­unclear. Does it guarantee a minimum standard of life, or instead, is it necessary for ­human flourishing that entails extensive state obligations? Third, dignity has the potential to limit rights pursuant to the logic of community dignity in the Aadhaar decision (K S Putta­swamy [Retd] v Union of India 2018), which ­portrays dignity as a reason to favour collective goals at the expense of ­individual rights.

What unites these reasons is the scant attention that the content of dignity has received in judicial decisions and its ­casual invocation by courts. Motivated by this, I conclude that India’s judicial experience with dignity provides reasons to rethink the functional legitimacy of constitutional courts.

A Double-edged Sword

Controversies over dignity abound outside India. Two European examples highlight the rights-limiting potential of dignity. In the German Peep Show case (German Federal Administrative Court 1981), the Federal Administrative Court in Germany banned peep shows stating that they violated the dignity of female performers. In peep shows, individuals could watch erotic performances by women through peepholes in private cabins on payment of money, creating a sense of voyeurism. Applying Kant’s ­famous object formula, the Federal Admi­nistrative Court found that the practice reduces performers to mere ­objects, despite the contending morality of the performing women that it was their chosen means of livelihood (Botha 2009). Similarly, in France, dwarf thro­wing was banned on the grounds that it violated the dignity of dwarves.1 Manuel Wackenheim, a dwarf who chose to participate in the activity, challenged the ban, arguing that it was his choice as an autonomous human being to earn his living by dwarf throwing. His challenge was unsuccessful all the way up to the United Nations Human Rights Committee, defeated by what courts understood to be the dignity of dwarves (Manuel Wackenheim v France 2002).

Even if we agreed with the courts’ deci­sions in these cases, they illustrate that dignity is employed by opposing parties in a disagreement to arrive at conflicting conclusions. Consequently, the rationale for choosing dignity as a justification for either of the conclusions should be strong. India’s experience has been to the contrary, and the text of the Constitution is a suitable place to begin this account.

Dignity in the Constitution

The word “dignity” is mentioned thrice in the Constitution: in the preamble, the directive principles of state policy,2 and the fundamental duties.3 Unlike the constitutions of South Africa and Germany, dignity finds no mention in the chapter on fundamental rights in India. The Court has unshackled itself from this textual limitation by reading the preamble as an integral part of the Constitution (Kesavananda Bharati and Ors v State of Kerala and Anr 1973), containing the ideals and aspirations of the Constitution (Subbarao J in I C Golaknath and Ors v State of Punjab and Anrs 1967).

In the preamble, dignity, along with the unity and integrity of the nation, is assured by fraternity. Each of these ­values, including “unity and integrity” are moral ideas and not territorial facts (Baruah 2019). As Upendra Baxi propo­ses, the two values point towards an empowering idea of dignity due to the development of “fraternity-dignity values” by the Court (Baxi 2014: 239–40). What this term precisely denotes remains to be fleshed out, but Baxi interprets this to mean that dignity is rights-apt, while fraternity is duty-apt. This line of thinking vindicates the rights-generating tradition of dignity and ­invites reflection on the potential of fraternity. However, there is a prior question of content that must be settled. It is the content of dignity that would determine which rights it supports and what its relation is with fraternity. In fact, the textual inspiration for dignity being ­included in the preamble is the Irish Constitution of 1937. Arguably, if we were to trace the content of dignity through its textual roots, then it is a conservative, catholic conception that would face us (McCrudden 2008: 658–59). A focus on context would avoid this awkwardness. Much like the German, Costa Rican, South African, and other constitutions, the Indian one evolved in the context of not only the independence movement, but an international push for universal human rights that culminated in the Universal Declaration of Human Rights (UDHR) in 1948. Scholarship on the UDHR points towards an inherent/intrinsic worth concept of dignity that was accepted by the framers (Morsink 2009: Ch 8). It is this Kantian, individualistic view of dignity rooted in Enlightenment values that has found favour with the Court.

How this individualistic concept of dignity bears upon the fraternity–dignity relationship is yet to receive judicial attention. For example, Article 51A in the fundamental duties invokes dignity in the context of derogatory practices related to women within a subclause about brotherhood among the people of India. Dignity’s connection with fraternity therefore resonates in this provision. Since dignity in the fundamental duties has not witnessed adjudicative action, it ­remains to be seen how the fraternity–dignity relationship would develop.

The directive principles of state policy, despite their non-justiciability, have been used to interpret the right to life with dignity. Courts have held directive principles and fundamental rights to be complementary and supplementary to each other (Chandra Bhavan Boarding and Lodging v State of Mysore and Anr 1969). The balance and harmony between the two is a basic feature of the Constitution ­(Minerva Mills Ltd and Ors v Union of India and Ors 1980).

Despite the high status accorded to it by courts, textual references to dignity in the Indian Constitution pale in comparison to those in other constitutions. Compared to Germany, where dignity has absolute and overriding status, in ­India, dignity is one among the several values listed in the preamble.4 Compared to South Africa, Canada, and Germany, dignity does not find any mention in the fundamental rights provisions in India. Despite this textual absence, the Supreme Court has primarily applied the concept in adjudicating fundamental rights, sometimes holding it to be the source of all fundamental rights. This bears out the generosity and flexibility with which the Court has approached the concept. This, however, is no guarantee for rigour. For example, if there was any textual clarity about dignity, it was the fact that the Constitution spoke of dignity of the individual. However, after Justice Sikri’s articulation of “community dignity” in the Aadhaar case, the text is drained even of this clarity. The confusion about dignity, however, emer­ges much before.

Dignity as Source of Rights

Dignity has been employed by the Court as the source of several unenumerated rights. Dignity has been used to justify the creation of new rights. For dignity to be an effective source of justification, the Court must explain how dignity is related to the rights that it generates. Unfortunately, there is scant explanation for how dignity is related to specific rights, which demands more justification than stating that dignity is so related.

A good example is the right to education. The constitutional entrenchment of the right by the 86th amendment was preceded by constitutional litigation that pronounced the right to be a fundamental right. The Court did so by reading the right to life along with the directive principles of state policy. Education was pronounced to be essential for a dignified life:

The dignity of man is inviolable. It is the duty of the State to respect and protect the same. It is primarily the (sic) education which brings forth the dignity of a man … An individual cannot be assured of human dignity unless his personality is developed and the only way to do that is to educate him … Although a citizen cannot enforce the directive principles contained in Chapter IV of the Constitution but these were not intended to be mere pious declarations. (Mohini Jain v State of Karnataka and Ors 1992: para 8)

At first sight, this appears to be a harmless, generalist application of dignity. However, a close reading of the passage is disconcerting. The Court establishes the duty of the state to protect the dignity of the individual by establishing a peculiar relationship between education and dignity: dignity is assured only if an individual is educated. This raises the question whether uneducated people have less dignity than educated ones? Or is it that education increases the dignity of human beings? If so, then the idea that all human beings have equal dignity becomes suspect, as with incre­asing education, more dignity is realised. Perhaps, the Court implies that dignity requires that every person should have the opportunity to be educated. But on what reading of dignity do we arrive at such an interpretation? These questions become pertinent since, in the same case, the Court holds that the right to education flows from the right to life (Mohini Jain v State of Karnataka and Ors 1992: para 12). But is dignity the best concept through which to establish this relationship? It is perhaps possible to justify the intrinsic relationship between education and life by appealing to other values in the preamble. For instance, in the Indian context, a burden to provide education arg­uably lies on the Indian state as part of its duty to achieve social and economic justice; or to ensure equality of opportunity; or to facilitate the liberty of thought and expression. These valuable ideals find explicit mention in the Constitution and provide more specificity as to why the state is obligated to provide education. In contrast, an easy and vague ­recourse to dignity has pushed the Court to hazy conclusions. Another such conclusion is that it is education that makes a person conscious of their dignity:

The fundamental rights … cannot be appreciated and fully enjoyed unless a citizen is educated and is conscious of his individualistic dignity. (Mohini Jain v State of Karnataka and Ors 1992: para 13)

Such observations strike at the very heart of the common intuition about ­human beings having equal dignity ­despite all differentiations, including educational levels. Theoretically, it may be argued that, on some performance-based understandings of dignity, it is a virtue that must be achieved through the actions of individuals. Such views are at variance with the Kantian idea of dignity as the equal intrinsic worth of humans. As I argue below, in the application of the concept by the Court in other cases, it is the Kantian idea that emerges (C Masilamani Mudaliar and Ors v Idol of Sri Swaminathaswami Thirukoil and Ors 1996).

Flourishing or Bare Necessities?

In employing dignity as a source of unenumerated rights, the Court at times reads dignity as guaranteeing the bare minimum necessities of life, and at others as mandating human flourishing. Cases involving the right to food bring out this contradiction with clarity.

In People’s Union Of Civil Liberties and Anr v Union Of India and Anr (2014), the Court in a single breath articulated a life with dignity in terms of both of the minimum standards for dignified existence and the maximalist standards that would make a person’s life meaningful and worth living:

In C E S C Ltd v Subhash Chandra Bose … this Court held that right to social and economic justice is a fundamental right … Therefore, right to life enshrined in Article 21 means something more than mere survival of animal existence. The right to live with human dignity with minimum sustenance and shelter and all those rights and aspects of life which would go to make a man’s life complete and worth living, would form part of the right to life. Enjoyment of life and its attainment—social, cultural and intellectual—without which life cannot be meaningful, would embrace the protection and preservation of life guaranteed by Article 21. (para 4)

This line of reasoning fits judicial decisions on the right to education, where education was held to be a component of a life with dignity, however debatable this may be. However, the present ext­ract leaves the meaning of dignity contingent on what meaning the Court gives to a complete life that is worth living, on the one hand, and the minimum standards that would guarantee it, on the other. It could imply that all socio-economic rights are included in the right to life with dignity. Simultaneously, it could mean that only those rights that ensure the minimum standards for a dignified life are included. For example, in Kapila Hingorani v State of Bihar (2003), the Court limits the meaning of dignity to some valuable aspects of human life and also indicates restrictions on them when it favourably quotes the following from a scholarly source:

The Right to Food in the context of Human Rights doesn’t mean that the state is a super-entrepreneur determining and carrying out economic activities according to its own wisdom. It means the Right to Feed Oneself, which emphasises dignity and self-reliance, very different from command economics of big government. (para 50)

Again, in P G Gupta v State of Gujarat and Ors (1995: para 8):

To the poor, settlement with a fixed abode and right to residence guaranteed by Article 19(1)(e) remain more a teasing illusion unless the State provides them the means to have food, clothing and shelter so as to make their life meaningful and worth-living with dignity.

These excerpts imagine a life with dignity as limited to the bare necessities of life as opposed to the broad interpretation given in People’s Union of Civil Liberties and Anr v Union of India and Anr. It also contrasts with the expansive ambit of dignity described in Chameli Singh v State of Uttar Pradesh (1996: para 8):

The ultimate object of making a man equipped with a right to dignity of person and equality of status is to enable him to develop himself into a cultured being. Want of decent residence, therefore, frustrates the very object of the Constitutional animation of right to equality, economic justice, fundamental right to residence, dignity of person and right to live itself.

In fact, in C Masilamani Mudaliar and Ors v Idol of Sri Swaminathaswami Thirukoil and Ors, the court held that the right to equality and dignity formed the basis of the preamble, the fundamental rights, and the directive principles.

There are numerous other cases where dignity has been employed as a source for rights. The point I want to draw atte­ntion to is that existing decisions can justify both a maximalist and a minimalist understanding of dignity, especially in the context of socio-economic rights. Such ambiguity surely has a very low normative potential to guide the discretion of judges in future cases.

Status of Dignity Limited

Judicial decisions employing dignity as a source of rights speak of dignity both as a right and a value that justifies rights. This has legal implications for the status of dignity within the Constitution. If dignity is a specific right, then must it not be loca­ted within a constitutional provision? The agreed place for dignity is ­Article 21. In that case, dignity is not an absolute value as is ordinarily understood, but limitable by law.

In Francis Coralie Mullin v Administrator, Union Territory of Delhi and Ors (1981), one of the early cases that brought dignity into focus in Indian jurisprudence, the Court unequivocally stated that any deprivation of human dignity would constitute a violation of the right to life. As such, it would have to be in accordance with reasonable, fair, and just procedure established by law. This imp­lies that an individual’s dignity is not absolute, and can be deprived by a fair, just, and reasonable law. Due process can thus limit dignity claims. Indeed, the court went on to say that “the magnitude and content of the right (to life with human dignity) depends on the extent of economic development of the country,” but must include the right to basic necessities, and “the right to carry on such functions and activities as constitute the bare minimum expression of the human self” (para 8). What is of greater significance is that the Court went on to state in paragraph 11 that the right to live with human dignity is a part of personal liberty. The implication is that judicial ­decisions that speak of dignity as a source of rights, especially socio-economic rights, are also related to personal liberty under Article 21 in some sense.

To be fair, in the Francis Coralie Mullin case, the Court does say in paragraph 6 of the judgment that the dignity of the individual, and the worth of the human person, requires that the provisions in question be interpreted in a wide manner. However, despite the licence for wide interpretation, the textual impli­cation of dignity being a part of the right to life remains in that it can be subject to the limitations of the due process of law.

In contrast, in Maneka Gandhi v Union of India (1978: para 4), the Court ascri­bes an absolute, non-negotiable nature to dignity, where all rights according to the Court exist to protect the dignity of the individual and that “since Vedic times, dignity weaves a pattern of guarantees on the basic structure of human rights.” This reasoning is reflected in K S Puttaswamy (Retd) and Anr v Union of India and Ors (2017), where while articulating the relationship between dignity, privacy, and liberty, the Court employed terms such as “inalienable” (paras 45, 101, and 169), “natural right” (Part G), and the core of fundamental rights. This might lead one to believe that dignity is an absolute value in India just as it is in Germany. In decisions on Aadhaar, euthanasia, and the rights of transgender persons, the Court employs a similar concept of dignity where dignity is the source of all fundamental rights and even above the text of the Constitution itself.

Given these distinct articulations of dignity, at least three possibilities emerge in thinking about the status of dignity. First, that as a part of Article 21, there is a specific right to life with dignity that can be limited by a just, fair, and reasonable law. Second, that dignity is a constitutional value that justifies all fundamental rights but can be limited whenever some rights can be limited based on other considerations. And third, that dignity is an absolute constitutional value that underlies all fundamental rights and is inalienable. Despite these possibilities, it would be safe to conclude that most decisions take dignity to be absolute. This reading gains support from other decisions that articulate dignity in terms of the intrinsic and inalienable worth of the individual.

Inherent Worth of Individual

There are several decisions of the Court that employ a natural rights justification for fundamental rights, where dignity is taken to be a basic feature of the Constitution. For example, in M Nagaraj and Others v Union of India and Others (2006), referring to Justice H R Khanna’s dissent in the habeas corpus case (ADM Jabalpur v Shivkant Shukla 1976), the Court held that fundamental rights in general were not privileges given to a citizen by the state. Dignity as a principle signifies the inherent value of every human being, and rights embodying dignity therefore placed limitations on state power. Dignity was akin to principles, such as reasonableness, fairness, and social justice that inform and connect various fundamental rights, particularly Articles 14, 19, and 21. Due to the nature of these principles, they are beyond the reach of the state. Despite recognising the indeterminacy of human dignity, the Court held that the concept was illimitable by state action.

Similarly, in Mehmood Nayyar Azam v State of Chhattisgarh and Ors (2012), the Court held that the right to life with dignity includes within itself the right against torture, especially by the police and other public authorities. Though other fundamental rights can be restricted, this right can never be stripped away as there is a loss of meaning to life when it is not fully recognised. Again, In Re Inhuman Conditions In 1382 Prisons (2016), the Court held that prisoner’s rights under Article 21 continue to exist despite being detained. Though there could be restrictions on movement and behaviour, human dignity guaranteed under Article 21 could not be taken away.

These cases on custodial rights unambiguously hold dignity to be an absolute value. Perhaps, it is the severe implications of the abuse of detenus by coercive state powers that motivates the Court to protect rights in an absolute manner. In protecting these traditional civil and poli­tical rights, the Court finds an ally in dignity as intrinsic worth as it operates through the basic humanity of individuals that even the taboo of criminal conviction cannot eclipse. An appeal to inali­enable natural rights as the basis of fundamental rights has been the Court’s chosen philosophical aide in articulating this position. Interestingly, a similar trend can be seen in cases that involve egregious violations of socio-economic rights, not only by the state but also by other individuals. For example, in State of Punjab and Ors v Jagjit Singh and Ors (2017), the Court held that an individual being paid lesser for the same amount of work as another violates the individual’s right to life with dignity. Another example is People’s Union for Democratic Rights and Ors v Union of India and Ors (1982), where the Court held that the rights protected by Articles 17, 23, and 24 protect the individual’s right to life with human dignity that cannot be violated even under the garb of a “voluntary” contract.

These cases show that in cases involving both civil–political and socio-economic rights, it is the concept of dignity as an intrinsic and absolute value that has guided the courts. This conclusion maps well with two similarities emerging from the application of dignity across ­juris­dictions pointed out by McCrudden (2008: 679):

(a) the limited-state claim: that the state ­exists for the individual and not vice-versa; (b) the relational claim: that dignity req­uires that others recognise the intrinsic worth of human beings and not violate rights that protect dignity.

Perfectionism, Rights and Dignity

The intrinsic worth account of dignity has now been firmly established in Indian constitutional law by the right to privacy decision. A nine-judge bench of the Court held that “Dignity is the core which unites the fundamental rights because the fundamental rights seek to achieve for each individual the dignity of existence” (K S Puttaswamy [Retd] and Anr v Union of India and Ors 2017: para 107). In reaching this conclusion, the Court for the first time devoted an entire section to the meaning of human dignity. This is a welcome trend in terms of focus, but there is still much to be desired in terms of rigour. For instance, the Court expresses contrasting views in the right to privacy and Aadhaar decisions. In the privacy case, the Supreme Court, through Justice D Y Chandrachud’s opinion, clearly indicated that the idea of dignity in the Constitution was that of individual dignity (K S Puttaswamy [Retd] and Anr v Union of India and Ors 2017). Indeed, the preamble too speaks of the dignity of the individual. However, in the Aadhaar case, Justice A K Sikri added the idea of community dignity as a core aspect of dignity, which could then serve as a reason to limit individual rights (K S Putta­swamy [Retd] v Union of India 2018).

As I have argued elsewhere, the Court’s application of dignity even in the privacy decision is very general, leading to potentially confusing conclusions (Baruah and Deva 2019). Uninhibited theorising, unanchored in rigorous disciplinary literature, has its fair share of disadvantages. However, a sympathetic rea­ding of the privacy decision shows that dignity is protected as an inalienable value, and privacy is instrumental in ­realising dignity. Dignity was a reason for protecting individual rights and not for restricting them.

Disconcertingly, the trend of uninhi­bited theorising resulted in a contradictory conclusion about dignity in the Aadhaar case: that dignity had a communitarian aspect which meant that collective goals could limit individual rights.

After privacy was declared a fundamental right, there was speculation that the material provisions of the Aadhaar Act would be held unconstitutional. To the contrary, the Court upheld the vali­dity of most provisions of the act. In ­doing so, Justice Sikri’s majority opinion extensively relied on dignity to advance a novel proposition: that dignity has individualistic and communitarian aspects that require balancing through the test of proportionality. At the heart of his reasoning were two propositions that I think are mistaken:

(i) That previous judicial decisions recognising the positive obligations of the state under Article 21 implied that the right had a communitarian aspect, where community goals postulating a good life assumed an ­important role in understanding the right.

(ii) The communitarian aspect of dignity allowed the collective goals of the community to limit rights.

In arriving at these conclusions, Justice Sikri’s opinion surveys vast philosophical materials to reconcile individualism and communitarianism—a task that has elu­ded philosophers for centuries. Deciphering the wisdom of the Court in all its breadth is a daunting task. I shall therefore focus on what it specifically says about community dignity. Referring to Ronald Dworkin’s views on dignity, and incorporating ­Upendra Baxi’s views, the Court characterises dignity in these terms:

(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.
(K S Putta­swamy [Retd] v Union of India 2018: para 107)

It then proceeds to articulate the idea of community dignity in terms of collective goals:

Dignity as a community value, therefore, emphasises the role of the state and community in establishing collective goals and restrictions on individual freedoms and rights on behalf of a certain idea of the good life. (para 116)

In arriving at this conclusion, reliance is placed on the NALSA decision (on rights of transgender persons) (National Legal Services Authority v Union of India and Ors 2014) to conclude that the positive obligations of the state entail a communitarian aspect to the right to life with dignity. It is unclear as to how Justice Sikri arrives at this conclusion. The paragraphs quoted from the NALSA decision clearly spell out that the right to life with dignity is to be understood as the right to human development aimed at securing “basic essentials designed to flower the citizen’s personality to its fullest” (K S Putta­swamy [Retd] v Union of India 2018: para 109). This is staple dignity language in terms of individual flourishing. Its motivating logic is that the state must provide essential goods that guarantee human dignity to the individual. There is no indication of how this involves collective goals that can limit rights, or how that is implied by the concept of dignity.

At first sight, Justice Sikri’s conclusions argue for a “perfectionist” state: a position in political theory that holds that the state can determine what is a good life for the individual. Whether the Indian state should be perfectionist or not is a philosophical question not ordinarily adjudicated by courts, especially so when there is agreement that the people through the Constitution, and not the state, set out the values of the republic. The state can surely set new goals, but only within constitutional limits. That is why the question before courts is whether a goal/objective set by law is legitimate, and not whether the state can set goals for individuals.

Courts adjudicate the limits of state action based on the Constitution. They also articulate the content of constitutional provisions, including rights and obligations. For a court to hold that a constitutional concept like dignity limits rights, it must demonstrate how that concept figures in the provisions that limit rights; for example, the reasonable restrictions on fundamental rights. The court’s opinion in Aadhaar does not discharge this burden. Instead, it takes easy recourse to not only dignity, but takes a contested position in political theory about perfectionism to read it as a new source of restrictions on fundamental rights. This is troubling as the decision is silent on how a perfectionist state is entailed by the idea of positive obligations and how perfectionism is related to dignity.

The idea of community dignity in the Aadhaar decision does not find support in Kantian arguments either. In explaining what dignity is, Kant does not invoke the role of the state or the community. His focus is on the individual in that others should respect the dignity of the indi­vidual by not treating them as a mere means to an end. When Kant speaks of individual autonomy as the grounds for dignity, he appeals purely to reason as a source of moral obligation, which in turn requires that an individual be treated with dignity (Kant 1998: 4:435). In Kant’s Kingdom of Ends (where dignity reigns supreme), the individual is an autonomous lawgiver as a member of that kingdom: someone who only obeyed the universal law that they give onto themselves. Someone could be sovereign there, for example, the state, the community, or some individual, only if they had a godlike character: someone who was “a completely independent being, without needs, and with unlimited resources” (Kant 1998: 4:434). It is implausible that the Aadhaar decision ascribes that character to the state.

To understand dignity in terms of achieving collective goals implies that the individual is a mere instrument in cases where the state and the community postulate the idea of a good life for individuals and restrict their rights towards that end. The individual then is not autonomous, and thus, such an idea of dignity goes against the very grain of Kantian dignity.

Be that as it may, Justice Sikri’s invocation of the idea of community dignity has made it an integral part of Indian dignity jurisprudence. He makes this clear when he states that the core values of human dignity are “intrinsic value, autonomy and community value” (Sikri J in K S Putta­swamy [Retd] v Union of India 2018: para 109). It would not be off the mark to say that community value is the odd one out here unless it is understood in terms of some other constitutional value such as fraternity.

In Conclusion

The problems with the application of dignity pointed out in this essay demand reflection on how courts could provide a more rigorous constitutional doctrine of dignity. Of course, a realist argument would yield that the personal inclinations of judges might explain divergences in understanding dignity. That might be true, but the argument cannot be a normative guide in how judges should apply the concept. I think that, at heart, the problem is epistemological: there is a legitimate question about how we acquire knowledge about vague moral values such as dignity. In thinking about courts, the epistemological question can be partially avoided, and pragmatic questions can be put: What materials should judges rely on in employing values such as dignity? What training or individual expertise do judges have in applying moral values as the foundational reasons for our fundamental rights? These are pertinent question in countries where constitutional judges mostly have legal expertise.

In India, constitutional judges are app­ointed by promotion from the lower judiciary and by elevating advocates. Though such persons have expertise over areas of law, it is unlikely for them to have cognitive expertise over values like dignity for two reasons. First, there is limited legal material on dignity that lawyers can claim expertise over. Second, most of the literature on these concepts is found in other disciplines, such as philosophy, even if some legal philosophers mistakenly argue that law is the proper starting point for discussions on dignity (Waldron and Dan-Cohen 2012: 13–14). Philosophy has long-standing traditions on dignity in at least Kantian, Catholic, Greek, and Chinese philosophy. For these reasons, constitutional values like dignity deserve careful attention by both lawyers and scholars across disciplines.

Notes

1 Dwarf throwing is an act where participants compete in the sport of throwing dwarves to the farthest distance possible.

2 “Article 39 (f). ..that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity.”

3 “Article 51A: It shall be the duty of every citizen of India—… (e) … to renounce practices derogatory to the dignity of women.”

4 Articles 1 and 2 of the German Constitution.

References

ADM Jabalpur v Shivkant Shukla (1976): AIR, SC, 1207.

Baruah, Pritam (2019): “Not Just Equality, the CAA Betrays Constitutional Values of Dignity, Integrity,” Wire, 27 December, https://thewire.in/rights/caa-constitution-equality.

Baruah, Pritam and Zaid Deva (2019): “Justifying Privacy: The Supreme Court of India’s Comparative Analysis,” Indian Yearbook of Comparative Law 2018, M P Singh and Niraj Kumar (eds), Singapore: Springer.

Baxi, Upendra (2014): “The Place of Dignity in the Indian Constitution,” The Cambridge Handbook of Human Dignity, Düwell Marcus, Jens Bra arvigRoger Brownsword and Dietmar Mieth (eds), Cambridge: Cambridge University Press.

Botha, Henk (2009): “Human Dignity in Comparative Perspective,” Stellenbosch Law Review, Vol 20, No 2, pp 121–220.

Chameli Singh v State of UP (1996): SCC, SC, 2, p 549.

Chandra Bhavan Boarding and Lodging v State of Mysore and Anr (1969): SCC, SC, 3, p 84.

Common Cause v Union of India (2018): SCC, SC, 5, p 1.

Francis Coralie Mullin v Administrator, Union Territory of Delhi and Ors (1981): AIR, SC, 746.

German Federal Administrative Court (1981): BVerwGE 64, 274.

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In Re Inhuman Conditions in 1382 Prisons (2016): SCC, SC, 3, p 700.

Kant, Immanuel (1998): Groundwork of the Metaphysics of Morals, trans Mary Gregor, Cambridge: Cambridge University Press.

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K S Putta­swamy (Retd) v Union of India (2018): Writ Petition (Civil) No 494 of 2012, Supreme Court judgment dated 26 September.

M Nagaraj and Others v Union of India and Others (2006): SCC, SC, 8, p 212.

Minerva Mills Ltd and Ors v Union of India and Ors (1980): SCC, SC, 3, p 625.

Maneka Gandhi v Union of India (1978): SCC, SC, 1, p 248.

Manuel Wackenheim v France (2002): Communication No 854/1999, UN Doc CCPR/C/75/D/ 854/1999.

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McCrudden, Christopher (2008): “Human Dignity and the Judicial Interpretation of Human Rights,” European Journal of International Law, Vol 19, No 4, pp 655­–724.

Mehmood Nayyar Azam v State of Chhattisgarh and Ors (2012): SCC, SC, 8, p 1.

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P G Gupta v State of Gujarat and Ors (1995): SCC, SC, Supp (2), p 182.

People’s Union of Civil Liberties and Anr v Union of India and Anr (2014): SCC, SC, 15, p 327.

People’s Union for Democratic Rights and Ors v Union of India and Ors (1982): SCC, SC, 3, p 235.

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Waldron, Jeremy and Meir Dan-Cohen (2012): Dignity, Rank, and Rights, New York: Oxford University Press.

Wittgenstein, Ludwig (1969): On Certainty, Oxford: Basil Blackwell.

 

Updated On : 4th Aug, 2020

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