The Indian Supreme Court’s Use of Dignity in Constitutional Reasoning

Introduction

The use of human dignity as a constitutional value in judicial reasoning has sharply risen across jurisdictions in the last few decades, and India is no exception to the general trend.¹ Reliance on dignity is prevalent across theology, moral philosophy, legal theory, and bioethics with debates from each occasionally travelling across and challenging disciplinary boundaries In the last decade especially, many scholars, particularly from the field of comparative constitutional law, have examined whether the concept is understood in similar ways across legal cultures, and if so, in determining the degree of overlap.²

While some suggest that the broad reliance on the concept is indicative of a ‘global model of constitutional rights’,³ others argue that the term is an ‘empty shell’ of little conceptual value due to the prevalence of diverse and contradictory meanings across courts.⁴

This chapter examines the Indian Supreme Court’s (hereinafter referred to as ‘the Court’) judgments on dignity as a constitutional value and a fundamental right to gauge what conception(s) of dignity are at play in Indian constitutional jurisprudence.⁵ Building on previous work that demonstrates the lack of clarity over

Dignity in the Indian Constitution

the content ofdignity in the Indian context,⁷ it proceeds from the premise thatinorder to understand dignity in Indianconstitutional adjudication we must examinehow the Court has explained the concept, and often more importantly, how it has Dignity does not feature prominently in the Indian constitutional text While the Indian Constitution uses the term in three places, none is found in the chapter on Fundamental Rights The first usage of “dignity” in the Indian Constitution is in the Preamble, which declares: WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure toall its citizens.: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity andintegrity of the Nation...

It is worth noting that the link between fraternityand dignity may be interpretedin numerous ways For example, it could be argued that the focus here is onpursuing a particular conception of fraternitythatpreserves the dignity ofindividuals or it could be argued that the pursuit of the collectivistic value ofused the concept in diverse ways This chapter proceeds to briefly examine the references to dignity in the text of the Indian Constitutionwith the aim ofpresenting the starting point for the Court”s interpretation of the concept The chapter goes on to analyse the development of different understandings and uses ofdign ity across its jurisprudence Futher, the chapter discusses the Court”s dignity jurisprudence through two broad phases— before and after “the right to live with dignity” was held to be a facet of Article 21— and examines differences in the way the Court has derived the contents of dignity in its jurisprudence since the 1980s, which is concluded by surveying some recent judgments of the Court invoking dignity to expand and enforce rights, while also highlighting how persistentambiguities in the understanding of the concept raise serious concerns for the future of Indi a”s fundamental rights jurisprudence.

Regardless of which way we view thefraternity.…dignity relationship, the text of the Preamble appears to suggest that the concept of dignity is rooted in the individual.

The second and third usages of “dignity” were inserted by the 42nd Amendmentto the Indian Constitution, passed in 1976 during the Emergency declared by the Indira Gandhi…led government As a later insertion, these usages ofdignity in theconstitutional text are of limited value inseeking to understand how the framers of the Indian Constitutionconceptualised dignity They are, however, relevant for the purpose of understanding the text that the judiciary works with while construing the concept Thus, these usages are relevant to the extent that judges have sought toderive or construe the scope and meaning of the concept based on this text.

The second usage is found in Article 39(f, which provides that “the State shall, inparticular, direct its policy towards securing that children ar e given opportunitiesand facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment”. Article 39(f is found in Part IV of the Constitution, which lays down the Directive Principles of State PolicyNotably, anearlier provision in this Part clarifies that the Directive Principles “shall not beenforceable by any court”.

The third usage may be found in Article 51A(eArticle 51A inserts the conceptof fundamental duties, and 51A-.(e declares that “it shall be the duty of every citizenof India to promote harmony and the spirit of common brotherhood amongst allpeople of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women”. As Pritam Baruah argues, this usage, speaking of promoting brotherhood and eliminating practices contrary to the dignity of women in one breath, appears to reflect the linkbetween fraternityand the dignity of the individual emphasised in the Preamble.

This brief analysis indicates that the Indian judiciary would be expected toprovide a justification for substantively invoking dignity while evaluating claimsconcerning violations of fundamental rights Undoubtedly, the use of dignity in the The Indian Supreme Court”s Use of Dignity In Constitutional Reasoning

6 Preamble lays the groundwork for dignity to be invoked asa constitutional value.

However, the absence of dignity fromthe explicitly enforceable fundamental rightsprovisions is noteworthy Inthis regard, the Indian Constitution may be comparedand contrasted with several other constitutions under which dignity has come toplay a central role in adjudicating rightsclaims Wellknown examples include the German and South African Constitutions, where dignity is expressly recognised as a constitutional valueEven some constitutions in South Asia, such as those of Pakistanand Nepal,recognise dignity as a constitutionalright.

In the following section I discuss how, despite this limited textual foundation, the Court gradually changed its approach to adjudicating rights claims under the Constitution so as to accordan increasingly central role to dignity asboth a valueand a right in Indian constitutional jurisprudence.

The Court”s jurisprudence on dignity can be divided into two phases: before andafter dignity was recognised as a facet of the right to life and personal liberty under Article 21. The following part surveys the different ways in which the Court hasused dignity inits jurisprudence across and within these two broad phases.

This phase of the Court”s jurisprudence isoften overlooked in studies of the Court”s use of dignity This oversight may be attributed to the fact thatthe Court”s later useof dignity is more substantive and vastly outshines the brief references made todignity inthisphase However, tracking the use of dignity in this early phase ishelpful to get a sense ofhow the Court”s approach to employing dignity changed.

This is also of relevance for understanding some of the concernsemerging from the Court”s more recent jurisprudence.

The first case to invoke dignity was in fact the first fundamental rights caseadjudicated by the Court:This case is famous forholding that fundamental rights provisions cannot be read together, and was

ultimately overruled on thiscount over 20 years later.

Notwithstanding this, Justice Patanjali Sastri-.”s use of dignity sheds light on how the concept was understoodinthe early years Referring to the Preamble, Justice Sastri explained that “the people of India have ƒ adopted the democratic ideal which assures to the citizen the dignityof the individual and other cherished human values as a means to the full evolutionand expressionof his personality”.

Here, dignity was clearly understood as a valuethat could be used to ensure that constitutional interpretation was directed at theevolution and expression of individuals” personalities.

The Court referred to the concept of dignity twice in 1958 while reviewing theconstitutional validity of legislation Inthe Court held that the wording of a statute governing the wages to be paidto journalists should be interpreted as requiring wages to be above the level requiredfor minimal sustenance, and enough for employees “to live decentlyand withdignity”. A challenge to the validityof the statute on the ground that it violatedthefundamental right to engage in the business of players in the newspaper industry wasthus rejected, with the Court noting that Press Commission had expressed its viewthat “if a newspaper industry (sic could not afford to pay to its employees a minimum wage which would enable them to live decently and with dignity, thatnewspaper had no right to exist”.

Inthe Court”s opinion was sought by the President under Article 143 on whether a Bill passed by the Kerala Legislative Assembly seeking todrastically reorganise the education sectorviolated the fundamental rights provisionsIn its opinion, the Court referred,The Court then proceeded to read the fundamentalrights provisions collectively as seekingto serve that purpose This approach toreading the Constitution is worth noting because it enables the Court to highlightthe importance of education for the fulfilment of fundamental rights, and it alsosuggests a linkbetween the Fundamental Rights and the Directive Principles inindicating that both require the State to ensure equality of opportunity in pursuingeducation.

Although the use of dignity in these two cases isnoteworthy., the concept doesnot play a substantial role in the Court” s reasoning until 1967 where it was employedin a dissenting judgment by Chief Justice BP. Sinha inIn this case, the head of the Dawoodi Bohra community challenged theconstitutional validity of the Bombay Pr evention of Excommunication Act, 1949 on the ground that it violated the community”s rights to freedom of religion guaranteedunder Articles 25 and 26 by interfering with their ability to control membership oftheir community While a majoritystruck downthe Act, Chief Justice BP. Sinhafocused on the effects of excommunication on a person.”s civil rights and traced thehistory of the statute to identify it as social reform legislation, the kind of which isenvisaged under Article 25(2b of the Constitution.

Hereasoned that the Act wasnecessary to penalise actions that had “the effect of depriving a person of his humandignity and rights appurtenant thereto”, and thatit ought to be upheldas it wasaimed at ensuring dignity and gave “full effect to modern notions of individualfreedom to choose one”s way of life”.

A few years later, dignity emerged as a significant concept influencing the views of the Court on the scope of the power to amend the Constitution in the landmarkcases ofInSecond, and in more depth, he used dignity to outline the inherentlimits on the power of the Parliamentto amend the Constitution Taking a historical view of the drafting of the Indian Constitution, Chief Justice KSubba Rao, writing for the majority, reasoned that the idea of dignity and liberty of theindividualwas at the heart of the Constitution and thatany amendment curtailingthe Fundamental Rights would thus be unconstitutional.

As is now well known, in 1973, in Sardar Syedna vState of BombayI.CGolaknath vState of Punjab and Kesavananda Bharati vState of Kerala Golaknath, Chief Justice KSubba Rao used dignity in two senses First, while discussing the “unequal dignity” of legislation and constitutional amendments Kesavananda Bharati, the Court overruled Golaknath on the scope of limits on amending power, holding that while the Fundamental Rights chapter may be amended and curtailed, the basic structure of the Constitution could not To arrive at the “basicstructure doctrine”, the judges forming

Justices Shelat and Grover found “dignity of the individual” to be one of the basic features and held that itwas sought to be secured by Parts III and IV of the Constitution.

Although the Court did not always flesh out its conceptionof dignity in thesecases, it is quite evident that the Court was using the concept as a constitutionalvalue Broadly understood, constitutional values are concepts thatshape how a constitution isto be interpreted, applied, and made operational.

Arguments basedon constitutional values “assert claims about what is good or bad, desirable orundesirable, as measured against some standard thatis independent of what theconstitutional textrequires”.

In this early phase, the Court, while sometimes tracingthe source of the value of dignity specificallyto the Preamble,and sometimesidentifying it as underlying multiple parts and provisions of the Constitution,repeatedly relied on dignit y as an interpretive aid toexpound and expand on themeaning of the constitutional text Thisphase of the Court”s use of dignity ischaracterised by the constrained approach towards invoking it in judicial reasoning, The Indian Supreme Court”s Use of Dignity In Constitutional Reasoning

Second Phase \(1970…present\)

As Upendra Baxi has argued, a “paradigm shift”in the Court”s approach to usingdignity occurred in 1978 with the judgment ofSecond, the Court observed that the fundamental rights are of the nature of “b asic values”, and “are calculated to protectthe dignity of the individual and create conditions in which every human being candevelop his personality to the fullest extent”.

Third, the Court, using the example of the right toa free press,elucidatedthe concept of unenumeratedrights, clarifyingthat it was within the judiciary”.s power toderive implied rights from express rights byreading them individually or collectivelyFourth, the Court noted that even though Article 21 was framed negatively to guaranteethat “no person shall be deprived of hislife or personal liberty except by procedureestablished by law”, this must be read asconferring “the fundamental right to life”—.a right aimed at ensuring “the happiness, dignity and worth of the individual.”.

Finally, the Court read the fundamental rightsprovisions together to holdthatlaws curtailing the rights guaranteed under Article 21 cannot passed by the legislature, but theymust be “fair, just and reasonable, notfanciful, oppressive or arbitrary”.

Curiously,anddespite developing this expansive approach to interpretingthe Constitution, the Courtdid not ultimately grant a remedy to the petitioner in the case To that extent, it is Maneka Gandhi vUnion of India, authored by Justice PN. Bhagwati In this case, the Court, through a series of steps, developed a novel approach to interpreting the Constitution expansively with a particular emphasis on Article 21. These steps are worth identifying separately as each has caused ripple effects in Indian constitutional jurisprudence and has played an important role in the rise of the Court”s subsequent use of dignity First, the Court expressly overruled AK. Gopalan, to hold that the fundamental rights provisions “are all parts of an integrated scheme” that collectively pursue the objects set out in the Preamble of the Constitution Maneka Gandhi was actually concerning “the right to go abroad”,

In [T]he right tolife includes the right tolivewithhuman dignity and all thatgoes alongwith it, namely, the bare necessaries of lifesuch as adequate nutrition, clothing andshelter and facilities for reading, writing andexpressing oneself in diverse forms, freelymoving about and mixing and comminglingwith fellow human beings.ƒ Every actwhich offends against or impairs human dignity would constitute deprivation pro tantoof this right to live and it would have to be in accordance with reasonable, fair and justprocedure established by law which standsthe test of other fundamental rights.

In explained that the right to life “derives its life breathfromthe Directive Principles of State Policy” and therefore it “must include protection of the healthand strengthofworkers, men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop ina healthy manner and inconditions of freedom and dignity, educational facilities, just and humaneconditions of work and maternity relief”.

The story of how the Court gradually developed “the right to live with dignity” has been told numerous times, and is often described as capturing the rise of “judicial activism” or “PIL jurisprudence”. This is arguably the most studied andcelebrated aspect of the Court”s jurisprudence.

My aim here is not to recapitulate The Indian Supreme Court”s Use of Dignity In Constitutional Reasoning ratio that would operate as precedent in future cases However, these observations., combined with observations made by the same judge (Justice Bhagwati in Francis Coralie Mullin vAdministrator, Unio n Territory of Delhi and Bandhua Mukti Morcha vUnion of India Francis Coralie Mullin, the Court explained: Bandhua Mukti Morcha, the Court dealt with a petition letter seeking redressal of the inhuman working conditions of a large number of employees in stone quarries Notably, the Court negated the argument that no fundamental right had been violated in this case, reasoning that Article 21 guarantees the right to live with human dignity including freedom from exploitationand that thisright was violated by the miserable conditions in which the employees were forced to work The Court

The first point to note in this regard isthat the Court has invoked and useddignity in a wide set of contexts to achieve diverse purposes, and the connectionsbetween the Court”s invocations of dignity across these cases are not immediatelyclear For example, the source of dignity as a legally relevant concept for the purposeof constitutional adjudication has been traced differently across cases—sometimesbased on natural law theory, the Preamble, Article 14, Article 21, and variousprovisions of Part IV of the Constitution, and sometimes through a collectivereading of multiple Parts of the Constitution Further, dignity has been used for a variety ofpurposes in these cases, including to recognise unenumerated rights,toidentify social welfare legislation asadvancing the purpose underlying the Constitution and accordingly interpret them expansively,to emphasise the positiveduty of the State to protect rights,to issue comprehensive guidelines to fill a legislative void-.,and to enter into dialogue with the executive on the capacity toraise the fulfilment of socioeconomic rights.

In light of the variety ofways in which dignity has been invoked and applied afterthe 1970s, any neat classification of the Court”s dignity jurisprudence is fraught withdanger However, this section establishes theargument that it is possible to sustain a loose classification of these cases based on the approachtaken by the Court to derivethe specificcontents of the meaning of dignity In my view, focusing on this aspectof the Court”s reasoning with dignity enables us to distinguish between cases wherethe Court has relied on the text of the Directive Principles to elucidate the meaningof dignity and cases where the Court has asserted the meaning based on the notionof the intrinsic worth of human beingsI further argue that the Court”s recentjurisprudence on dignity can be considered a separate category because of therobustness of the conceptionof dignity employedtherein and because of the way in

Thereafter, relying onSimilarly, inthe Court affirmedthe Court read Article 21 with the Directive Principles generally to hold that the right tolife guaranteed under the Indian Constitution extends to the right to food, water, decent environment, education, medical care, and shelter.

The Court explained that the right to shelterincludes “adequate living space, safe and decent structure, clean and decentsurroundings, sufficient light, pure air andwater, electricity, sanitation and othercivic amenities like roads etc.”, and heldthat the lackof a decent residence wouldfrustrate the objects of the Constitution which were to ensure,Inthe Court relied on The Indian Supreme Court”s Use of Dignity In Constitutional Reasoning Directive Principles and Dignity In one set ofcases, the Court has relied heavily on the textof the Directive Principles to explain the scope of the right to live withdignity This includes the landmark cases where the Court expanded the scope of the rights to education, food, and health as forming a part of the right to live with dignity Some examples of this approach to using dignity are discussed below In Mohini Jain vState of Karnataka, FC. Mullin and Bandhua Mukti Morcha, the Court heldthatthe “right to life” covere d all rights that are “basic to the dignified enjoyment of life” and included “the right to education”-.. UnniKrishnan vState of Andhra Pradesh, Mohini Jain to the extent that it recognised the right to education as implicit within the right to live with dignity, and then explained that the content of the righ t needs to be determined in light of the Directive Principles By reading the right to live with dignity along with Articles 41, 45, and 46 of the Constitution, the Court arri ved at the conclusion that each citizen shall have a right to free education until the age of 14. In Chameli Singh vState of Uttar Pradesh, inter alia, the “dignity of person”. Vincent Panikurlangara vUnion of India,

Bandhua Mukti MorchaSimilarly, inthe Court read Article 21 with Article 47 toemphasise that the right to live withdignity included the “right to food.”.

Occasionally, the Court also relies on the Directive Principles that expresslymention dignity to explain its meaning For example, in Mallikarjunthe Court was asked to consider the scope of limits on the inheritancerights of children born within a void orvoidable marriage as per Section 16(3 of the Hindu Marriage Act in light of previousjudgments that held that such childrenwould only be entitled to the selfacquired property of the parents but not theirancestral property Notably, the Court found that the previous judgments wereflawed because theyfailed to appreciate the constitutional value of “individualdignity” while interpreting the statute Relying on the Preamble and Article 39(f of the Constitution, the Court held thata child born withina void or voidablemarriage “is innocent and entitled toall the rightswhich are given to other childrenborn in a valid marriage”.

These kinds of cases, however, form a minusculepercentage of the cases where dignity has been invoked by the Court.

There is a paradox inherent in this strain of the Court”s dignity jurisprudence On the one hand, the extensive reliance on constitutional text to explain the meaning ofdignity can be used to suggest that the Court”s conception of dignity inthese cases isderived through a legitimate judicial exercise of constitutional interpretation On theother hand, the Court”s justification for drawing on the Directive Principles despitethe bar on their judicial enforceabilityis a rather weak one, relying on a connectionbetween the “right to life” and the Directive Principles that is typically asserted morethan it is explained Dignity plays an important role in sustaining this paradox, asthe Court typically identifies dignity as the common value underlying the Fundamental Rights and the Directive Principles In this way, the concept of dignityabsorbs the tensions betweenthe Fundamental Rights and the Directive Principles, only for the tensions to resurface as questions over the meaning of dignityto explain that the right to live with dignity guaranteed under Article 21 when readwith the Directive Principles., and particularly Article 47, must be understood as obligating the State to improve public health Kapila Hingorani (I vState of Bihar, Revanasiddappa v.,

Dignity as the Intrinsic Worth of the Human Beingwhere the Court considered the scope of the right against selfincriminationguaranteed under Article 20(3.

Aside from describing Article 20(3 as “a guaranteeof dignity and integrity and of inviolability of the person”,this case is importantbecause of its explanation of how dignity may be used to evaluate the legality ofactions taken within India”s criminal justice system As the Court explained: The first obligation of the criminal justice system is tosecure justice by seeking andsubstantiating truth through proof Of course, the means must be as good as the endsand the dignity of the individual and the freedom of the human person cannot besacrificed by resort to improper means, however worthy the ends Therefore, “thirddegree” has to be outlawed and indeed has been We have to draw up clear linesbetween the whirlpool and the rock where the safety of society and the worth of thehuman person may coexist in peace.

Though the Court does not explicitly refer to Kant”s moral philosophy, it is clearthat the judicial formulation of what dignity entails as expressed here closelyresembles the Kantian notionof individuals having intrinsic worth.

In other cases, the Court has shown an inclination towards a more theological conception ofdignity, such as inwhere it issuggested that the constitutional conception of dignity may be traced from thenotion that “there is divinity in every man”.

In a sense, these cases are outliersamong this strand of the Court”s dignity jurisprudence because they attempt to fleshout the content of dignity before applying it to the facts of the case Ina majority of The Indian Supreme Court”s Use of Dignity In Constitutional Reasoning Another strand of the Court” s jurisprudence ondignity, although largely relying on the same set of foundational cases for the proposition that Article 21 includes the right to live with dignity, has explained the implications of the concept without relying on the Directive Principles., but byderiving its meaning fromphilosophical texts, natural law theory, and the semantic meaning of the term—typically as it is understood in international human rights discourse These cases use the terms “dignity of the individual”, “individual dignity”, “human dignity”, and “intrinsic worth” in a seemingly interchangeable way, often tracing the concept to a particular fundamental right One of the first among these was the case of Nandini Sathpathy vP.LDani, Mohd Giasuddin vState of Andhra Pradesh,

A prominent case of this kind iswherein the Courtconsidered the constitutionality of prolonged solitary confinement and thecontinued use of bar fetters on prisoners The Court, noting that it must testthe lawon a broader basis followingexclude the use of such punitive techniquesHere, the Court declared thatpunishments incivil society may not be permitted to degrade the dignity of humanbeings Similarly, in another landmark case,the Court heldthat “custodial torture” constituted a “naked violation of human dignityand degradation which destroys, to a verylarge extent., the individual personality”.

This notion ofhuman dignity as the intrinsic worth of the human being has sincebeen extended and applied tonumerous aspects of the criminal process in judgmentsreviewing police behaviour,granting compensation to victims of custodialviolence,and affirming that a speedy and fair trial are necessary concomitants of the right tolive with dignity guaranteed under Article 21.

Recently, the Courtapplied thisnotion of “intrinsic worth of human beings” to review the manner inwhich death sentences are carried out, holding that executions “carried out inanarbitrary, hurried and secret manner without allowing the convictsto exhaust alllegal remedies” would violate the “right to dignity”.

It is worth noting here that this conception of dignity has not only played a role in the realm of criminallaw but also has shaped the Court”-.s view on when civilproceedings may validly curtail the liberties and livelihoods of individuals In George Verghesefor example, the Court a rrived at the conclusionthat judgmentdebtors shouldnot be detained unless there is proof ofwilfulfailure topay in spite of sufficient means, noting that “the high value of human dignity and theworth of the human personenshrined in Ar ticle 21, read with Articles 14 and 19-., obligates the State not to incarcerate except under law which is fair, just and Sunil Batra vDelhi Admin., Maneka Gandhi, read down the statute in questionto DK. Basu vState of West Bengal, Jolly vBank of Cochin,

Another example in this regard is Bombay Municipal Corporationwidely known for reading Article 21 along withvarious Directive Principles todeclare that the right to life included “the right tolivelihood.”. In thiscase, the Court notably rejected anargument that trespassers maybe evicted for encroaching on public properties without being given noticebyobserving that people had a right to be heard which was grounded in “human dignity”-..

In a passage underlining thelink between dignity, justification for State action andjustice, the Court explained: [A] hearing represents a valued human interaction in which the affected personexperiences at least the satisfaction of participating in the decisionthat vitally concernsher, and perhaps the separate satisfactionof receiving an explanation of why thedecision is being made in a certain way Both the right to be heard from, and the rightto betold why, are analytically distinct from the right to secure a different outcome; these rights to interchange express the elementary idea that to be aFrom this discussion on how the Court hasused the notion of dignity as intrinsicworth, it is clear that there is scope for variance in how the contours of thisconception of dignity are derived and in how it is then used Broadly, however, itappears that many of these usages of dignity as intrinsic worth of the human beingarise in the context of harms or potential harms to a person”s bodily integrity orlivelihood Interestingly, in many of these cases, the Court uses the expansiveinterpretation of Article 21 brought about through The Indian Supreme Court”s Use of Dignity In Constitutional Reasoning Olga Tellis v., person, rather than a thing, is at least to be consulted about what is done with one.ƒ At stake here is not just the muchacclaimed appearance of justice but, from a perspective that treats process as intrinsically significant, the very essence of justice Maneka Gandhi as an entry point to rely on international human rights instruments to explain the meaning of dignity, and to rely on American case law on the meaning of “due process” and “cruel and unusual punishment” to explain when the intrinsic worth of the individual isviolated While the conception of dignity as intrinsic worth appears rather robust, this is ultimately a feature of the Court”s jurisprudence that can be gleaned more easilybylooking at how the concept is used than from how it is explained by the Court As I argue in the next section, in recent years, the robustness of the conception of dignity in Indian constitution al jurisprudence is al so more evident in the Court”s explanation of the meaning of the term Recent Developments in Dignity Jurisprudence In manyways, the Court”s recent jurisprudence on dignity representscontinuations and extensions of the two strands of dignity jurisprudence identified above.

However, amidst the continuities, it is alsopossible to identify small shifts in howthe Court invokes and employs dignity, which is what I seek to capture in thissection As opposed to many prior caseswhere the content of dignity was derivedbased on the Directive Principles or based on its relation to bodily integrity, severalrecent judgments derive dignity”s meaning and significance by exploring andanalysing its relation toother constitutional concepts This includes conceptsexpressly recognised in the Constitution, such as equality and liberty, as wellasconcepts seen to underlie the constitutional text, such as autonomy, privacy, andidentity.

One of the earlier cases in this regard iswhere the Court considered the constitutionality of the use of narcoanalysis, polygraph tests, and brain electrical activationprofile (BEAP tests in criminal investigations In thiscase, the Court built on observations made in-.

The Court ultimatelyprohibited the use of the tests, finding that “a forcible intrusion into a person”s mental processes is also an affront to human dignity and liberty”.

Notably, all six of the opinions authored in thisunanimous verdict draw heavily on the concept of dignity while justifying privacy as a right and explaining its scope and its relationship with other rights Justice Chandrachud, for example, explained as follows: Privacy of the individual is an essential aspect of dignity Dignity has both an intrinsicand instrumental value As anintrinsic value, human dignity is an entitlement or a Selvi vState of Karnataka, Nandini Satpathy, noting that aside from Article 20(3, the right against selfincrimination was also a component of the rights to personal liberty and privacy gu aranteed under Article 21. Through this collective reading of Articles 20 and 21, the Court reframed the issue as one concerning personal autonomy, holding that “an individual”s decision to make a statement is the product of a private choice and there should be no scope for any other individual to interfere withsuch autonomy, especially incircumstances where the person faces exposure tocriminal charges or penalties”. KS. Puttaswamy vUnion of India is perhaps one of the most prominent contributions to the Court”s dignity jurisprudence As some scholarspoint out, this judgment, recognising that the fundamenta l right to privacy is an unenumerated right guaranteed under the Indian Constitution, in many ways points to a new beginning in Indian constitutional jurisprudence—one that places the dignity of the individualat the centre.

The ability of the individual to protect a zone of privacy enables the realisation of thefull value of life and liberty Liberty ha’s a broader meaning of which privacy is a subset All liberties may not be exercised inprivacy Yet others can be fulfilled onlywithin a private space Privacy enables theindividual to retain the autonomy of thebody and mind The autonomy of the individual is the ability to make decisions onvital matters of concern to life.

Justice Nariman similarly relied on the constitutional value of dignity as protectingthe development of individuals to their fullest potential while reasoning that suchdevelopment can only be achieved “if an individual has autonomy over fundamentalpersonal choices and control over dissemination of personal information which may beinfringed through an unauthorised use of such information”.

The right to freely make fundamental personal choices as one of the facets of a dignified life isnow a settled aspect ofIndianconstitutionaljurisprudence Inthe Court heldthatprotecting the right topersonal liberty entailed respecting women”s privacy, dignity, and bodily integrity In this case, this combination of values was relied upon to upholdthe “right to makereproductive choices”.

Inthe Court, while issuingextensive directionsto the State to preventinstances of violenceagainst intercaste andinterreligious couples, emphasised that theright to marry a person of one”s choice “isan inextricable part of dignity”.

This was affirmed inwhere the Court noted that the Constitution recognises the liberty and autonomyinherent in each individual, explaining that this included “the ability to take decisionson aspects which define one”s personhood and identity” and specifically the right tochoose a partner “whether within or outside marriage”.

The Court has also explored the relationship between dignity and autonomy in the context of equality and nondiscrimination claims Inthe Court heldthat. “the fundamental right to dignity” included the right of a person to choose their gender identityand issued several directions to safeguard The Indian Supreme Court”s Use of Dignity In Constitutional Reasoning Suchita Srivastava vChandigarh Administration, Shakti Vahini vUnion ofIndia, Shafin Jahan vAsokan KM., NALSA vUnion of India,

Inthe Court heldthat persons with disability were “equal indignity and entitled to enjoy the same human rights and freedoms asothers”,andfound a private airline liable to pay damages to an individual for violating herdignity by discriminating against her on account of her disabilityandwhere the Court consideredthe constitutionality ofprovisions criminalising adulteryand consensual sexual acts between persons of thesame sex,respectively InSimilarly, in In both these cases, the framing ofconstitutional issues through thelanguage of dignity and autonomy helpedthe Court move away from the formalconception of equality prevalen t through its previous decisionsand move towards a substantial conception of equality that was sensitive to the impact, including symbolicimpact, of State action on persons as moral equals in society As the Court explainedinand systemic discrimination against disadvantagedgroups which effectivelyundermines their full and equal social, economic, political and cultural participation insociety”-..

Jeeja Ghosh vUnion of India, Perhaps more instructive are the cases of Joseph Shine vUnion of India Navtej Johar vUnion of India, Joseph Shine, it was contended, inter alia, that the provision criminalising adultery was unconstitutional as it was premised on the view that women were their husband”s property and thus violated their fundamental right to equality While striking down the provision, Justice Chandrachud noted that it was based on an understanding of marriage that “submerges the identity of the woman”, and held that the values ofliberty, dignity, and equality on which the Indian Constitutionisbased could not allow such a view of marriage to subsist Navtej Johar, Justice Chandrachud found that sexual orientation was integral to a person”s identity, “intrinsic to their dignity, inseparable from their autonomy and at the heart of their privacy”-. and ultimately heldthat to affirm the values of the Indian Constitution-., the decriminalisation of consensual sexual actsbetween adults of the same sex is required so that they may find fulfilmentin their personal choices and “l ead a life of freedom fromfear”. Joseph Shine, substantive equality is “directed at eliminating individual, institutional

The Court”s recent dignity jurisprudence is particularly fascinating because of therich conception of dignity atplay, which a ppears to enjoy an increasingly central rolein constitutional reasoning In quantitative terms, the Court demonstrates a tendencyto invoke dignity more frequentlyand often describes its role in constitutionaljurisprudence at more length than in its dignity judgments delivered between the 1970s and 2000sFor example, inand the “perspective ofhuman dignity”-..

At a qualitative level, in many of thes e cases, the relationship between variousfundamental rights provisions and the concepts embedded in them are increasinglyseen through the prism of dignity It would be incorrect to suggest that a fixedunderstanding of dignity is employed to make sense of other concepts (like equalityand autonomy Instead, it appears that the judiciary is incrementallyfleshing outthe meaning of dignity, as both a constitutional value and a right, while using it toexplain the meaning of other concepts In many of the recent judgments discussedabove, the concept of dignity has been used to emphasise or reinforce the ideas ofindividual autonomy and moral worth.

However, it would also be incorrect to suggest that a clear and coherent conceptionof dignity can be excavated fromthisincremental process of reasoning Much like itsconstitutional jurisprudence in general, the Court”s jurisprudence on dignity isfraughtwith inconsistencies and ambiguities thatmake it difficult to pin down the exactconception at play This ambiguity in the Court”s understandin g of dignity may bepartially attributed to the Court”.s general shift away frominterpreting the text of the Constitution towards relying onratio and obiter from its previous judgments to derivethe meaning of the Indian Co nstitution from constitutional values and conceptsunderlying the text Due to the gradual breakdown of the doctrine of precedent across India”-.s jurisprudence over the last few decades,this selfreferential system that is not The Indian Supreme Court”s Use of Dignity In Constitutional Reasoning Puttaswamy, Navtej Johar, and Joseph Shine, the Court invoked dignity 211, 209, and 129 times, respectively, in it’s reasoning These numbers are staggering when compared to Maneka Gandhi and Francis Coralie Mullin, where the Court referred to dignity 10 and 6 times, respectively This may be partially attributed to the fact that in re cent years the Court has begun writing longer judgments than it used to in earlier decades However, this is not the only factor It is clear that, in many judgments, the Court de votes more attention and space toexplain the concept ofdignity, often with long su bsections exclusively pertaining to the “jurisprudence on dignity”

Amidst this polyvocality and general ambiguity in constitutional doctrine, therehave been several instances where the Court”s use of dignity appears to be intension with other strands of the Court” s jurisprudenceA prominent example ofthis is the judgment authored by Justice AK. Sikri in Indiawhere the Court employed the conceptof dignity to reject challenges toprovisions of the AADHAAR Act that enabled the State to effectively make AADHAAR cards mandatory for availing of socialwelfare schemes In this case, the petitioners argued that alternative form’s of identification were equally effectivewithout giving rise to the same degree ofharm to the right to privacy Notably, the petitioners relied on several cases elucidating upon the concept of dignity toargue that facets of privacy related todignity, autonomy, and liberty wereunreasonablycurtailed by the Act Basedon these grounds, the petitioners arguedthat the measure failed to pass the proportionality test, and was thereforeunconstitutional In response, the government relied on cases where the Court hadread the Fundamental Rights along with the Directive Principles as representingthe concept of human dignity, and on socioeconomic rights cases arising under Article 21 toargue that the use of AADHAAR cards for social security benefits wasconstitutionally valid because it was aimed at the realisation of human dignity.

The majority judgment authored by Justice Sikri clubs together multiple, seeminglyconflicting, conceptions of dignity in a long section entitled “principles of humandignity”before ultimately upholding the state”s contention while purportedly KS. Puttaswamy vUnion of-.,

At this stage, the Court equates the aims of the AADHAAR Act with the benefitsto social welfare thatcould potentially bepursued through these aims, finding that “there needs to be balancing of twofundamental rights, right to privacy on the one handand right to food, shelter andemployment on the other” since “both the rightsare founded on human dignity”-..

The Court relies on the case law expansively construing Article 21 as including theright to live a dignified life and deriving socioeconomic rights from that, discussesseveral foreign case lawson balancing of rights, and then concludes that because “the Act aimsat efficient, transparent and targeted delivery ofsubsidies, benefits andservices”, “this technology becomes a vital toolof ensuring good governance in a socialwelfare state”-., and therefore the Act “meetsthe test of balancing”-..

In the process of framing the issue asone involving balancing fundamental rights, the Court overlooked the evidence adducedto contest the efficacy of the AADHAAR Act, while also overlooking the fact that the cases where Article 21 was expanded werethose where aggrieved persons, often belonging to vulnerable sections of society, haddemonstrated violations of their right to live a dignified life due to State inaction, negligence, or incapacity By treating the State as representing the rights of socioeconomically weaker sectionsofsociety, the Court in one move displaced thepetitioners” claims that represented thosepersons and changed the nature of the issuefrom one of right versus State restriction (s een through the lens of the evidencebasedproportionality test to one of balancing competing rights through an abstract notionof dignityA similar use of dignity injudicial reasoning may be found in Swamywhere the Court rejecteda challenge to the constitutionality of the criminaldefamation provision in the Indian Penal CodeIn this case, the petitioners contended that the provision was arbitrary and excessive, andamounted to an unreasonable restriction on the right to free speech Writing for the Court, Justice Dipak Misra categorised the case as one involving a clash of rights, andheld that the right to free speech must belimited by the righ t to reputation anddignity which was protected by the criminal defamation provision.

Conclusion

In both these cases, the lack of clarity over the conception of dignity applicableunder the Indian Constitution as wellas the muddled relationship between dignityand other fundamental rights enabled the us e of dignity as a substitute for a morenuanced justification for upholding the constitutional validity of restrictionsimposed on rights.

To be sure, this use of dignity as a smokescreen for judicialreasoning is not special to India Scholars have documented how the vagueness of the concept of dignity leads to it being easily invoked onboth sides ofan argument, and how courts across the world have relied on this vagueness to selectively use itin a paternalistic way, negating individual autonomy.

However, in the Indiancontext, concerns over the indeterminacy of dignity are enmeshed with concernsarising from the general decline of the doctrine of precedent, the prevalence ofjudicial polyvocality, and the vast discretionary power vested in the office of the Chief Justice to select benches Thus, the general proliferation in the use of dignityand its increasing centrality in Indian constitutional jurisprudence is a matter tobeviewed with equal doses of optimism and scepticism.

This chapter began bynoting the rather modest role accorded to the concept ofdignity in the text of the Indian Constitution, before tracing the developments in the Indian Court”s construction and application of the concept in the realm ofconstitutional law The chapter shows how the content of the concept of dignity hasbeen derived by the Court in different ways while relying on a variety of sources, such as different parts of the Constitution (including the Preamble, the Fundamental Rights, and the Directive Principles, natural law theory, and eventexts on theology and philosophy While at one level, the chapter highlights theincreasing centrality and significance of dignity in Indian constitutionaljurisprudence, at another level, it emphasises ambiguities embedded in judicialreasoning resulting from the loose invocation of dignity across a wide range ofcontexts combined withthe multibench structure of the Court This seeminglyparadoxical development in the use of dignity in constitutional reasoning holds bothpromises and potential risks for the futureof rights jurisprudence in India On the

On the other hand, viewing rights claims through the prism of dignityappears to enable judges to construe rights in a more robust form,and to movebeyond deferential doctrines based on a conservative approach to interpreting the Constitution.

Accordingly, the future of Indianrights jurisprudence dependspartly on how well the Court answers questions over the statusof dignity under the Indian Constitution, the relationship between dignity and (other fundamentalrights and particularly the relationship between dignity and the autonomy of individuals, and the standardof review applicable when dignity is threatened.

— The Indian Supreme Court”s Use of Dignity In Constitutional Reasoning