(Oshin Malpani is a third-year law student pursuing B.A.LL.B. ( Hons.) from NALSAR University of Law, Hyderabad)
Featured Illustration – ‘An Assault on his Dignity’ by Frederic Remington
(On importing the dignity conceptualizations from the constitutional realms to those of human rights)
Dignity: An import for human rights realm
‘Dignity’ has been a largely internalized value in both general and constitutional morals across the world. These internalizations have been explicit and implicit. The Indian constitution, for example, first promises general “dignity of the individual” in the preamble, then in Directive Principles of State Policy (DPSP) under Article 39(f), making it state’s duty to provide for a dignified and healthy environment for nation’s children to grow in and finally under Article 51A, making it every citizen’s duty to “renounce practices derogatory to the dignity of women”. Latvian constitution links dignity, more explicitly, to human honour and non-degrading treatment (under its preamble and Article 95). Hungarian constitution goes much deeper in declaring the right to life and human dignity as fundamental rights (Article 54) and the German constitution, starting with Article 1, also makes it an inviolable right. Even international instruments like the Universal Declaration of Human Rights (UDHR) and International Covenants on Human Rights (ICHR) recognize dignity as inherent to all humans, by the mere virtue of being a human being and associate basic set of social, economic, and cultural rights to go with it. Indian constitutional courts have also taken the dignity discourse further, with cases like Maneka Gandhi, making “basic structure of human rights” and negative state obligations key for a fuller realisation of human dignity and calibre and Bandhua Mukti Morcha, reading right to a dignified living as an inviolable part of Article 21.
Despite such relevance, dignity has seen minimalistic exports to other fields barring constitutional law (particularly in the field of comparative constitutional law). Dignity in the above sense, serves as a formalistic and an important equalizer, clarifying the bad stocks of inequalities and human right violations, especially those of bodily integrity, status, and character. It mothers the human rights of humans; everyone born human is born with it and dies with it (apparent from the wording of preambles of authoritative human rights instruments like UDHR and ICHR recognizing the “the inherent dignity and of the equal and inalienable rights of all members of the human family (as) the foundation of freedom, justice and peace,” and human rights as “rights deriving from the inherent dignity of the human person”). Plato, too, years back had conceptualised dignity as perhaps the key qualitative difference between the worlds of beings (men and gods) and inanimate things or objects (the interpretations of Plato’s Republic attempted in a similar context by Marek Piechowiak as “treating people as end in themselves,” instead of being “objects for the good of others” here and here agree with this conceptualization of Platonian dignity too). Dignity is described by Plato as, “an existential perfection, grounded in a particular perfect manner of being based on a special internal unity of being,” is perhaps the single, most convergent definition of dignity, similar to the values enshrined into our modern laws. In reinforcement and perhaps, reiteration, this definition rids certain classes of human beings from being mere instrumentalities for other (presumably ‘supreme’) classes of human beings to reach their ends. Instead, dignity, described in the Platonian way rests equal rights over the bodily integrity, status and character (the values we had identified earlier) in all members of the political community. From the above instruments, descriptions and case laws, it can be said without the fear of contradiction that, dignity, as an autotelic end entitled individuals to be well over the non-natural laws and even laws that were claimed “natural”. That is, law and her instrumentalities and even the entire justice system should be attuned to this centrality of human beings because of the dignity they possess. Yet, it is often not so. The dignity value lapses into mars of stereotyping and corrupting societal inputs. These are discussed in the following sections.
Dignity: A judicial play toy
The Indian courts have fiddled with ‘dignity’ only as a token ornament, letting its constitutional conceptions fall limp and allowing perverted notions of dignity to replace them. Take, for example, the rape jurisprudence of India and the way courts evidence rape. Plagued with gendered stereotypes and myths, the dignity of the prosecutrix is often the primary point of inquiry in rape sentencing (this even had statutory backing until 2003, where Section 155(4) of the Indian Evidence Act, 1872 allowed evidence to be adduced against a rape prosecutrix to show their ‘immoral character’ to infer that their testimony was false). To cite a few cases that did so, in the Pratap Mishra case, the court erroneously placed high reliance on the absence of injuries to infer an absence of resistance on part of the prosecutrix, downplaying their character and dignity. Similarly, in the Tukaram case the court, by merely citing the prosecutrix’s sexual history, denigrated them as a person of “generally immoral character” and accorded poor weightage to their claims. Recent ones like the Radhu case even went as far as suggesting a high tendency among women to file false rape complaints. Dignity is violated, not lost by the act of rape but going by the antiquated societal mores, courts have linked rape with defilement and loss of chastity of women. Courts have remarked how rape reduces a woman to an animal, scars the most cherished position of a woman. This, in effect, sets the stereotypical standard of being ‘harrowed and devastated on the loss of dignity’ for a rape prosecutrix’s testimony to be admitted without corroboration and distrust. So, when the prosecutrix depicted confident movement after rape and did not depict the ‘ideal’ signs of being terrified and anguished, the courts’ confidence was not “inspired” in cases like Vimal Kamble and Raja v State of Karnataka and they felt obligated to dismiss their allegations.
Dignity: A gendered question
‘Dignity’ could have saved the day in rape adjudication and evidencing which has often seen miscarriages of justice at the hands of rife stereotypes. This could be done by envisioning rape as a violation of dignity that constitution and its courts have prescribed as a key human right. This should also be ideally coupled with treating and evidencing prosecutrix’s in a dignified manner as opposed to disparaging their characters and questioning their testimonies, just because they failed to satisfy the ‘ideal’ stereotypical image of rape victims in mind of the courts (as also urged in Bodhisattwa Gautam case). Instead, it became a gendered question where those who were “dignified” were good to go in the society but the “un-dignified” ones were in for the trouble, facing differential and biased standards of scrutiny than the former.
The gender question doesn’t pose itself just to the women and instead, pans across the gender spectrum. Dignity seen in the context of homosexuality would entail to the rights of persons to preserve their characters (both before the law and the society) and have an agency over their bodily integrities and deciding when it was “derogated.” These claims, in an idle world, would find ready backing among a multitude of fundamental and constitutional rights. However, yet again, it becomes a problem of common occurrence when socialistic (or popular) moralities are muddled with constitutional moralities. Deciding on the matter of criminalization of homosexuality, Justice A.P. Shah in Naz Foundation v. NCT Delhi, 2009 had remarked how, “unlike constitutional morality, popular morality is based on shifting and subjective notions of right and wrong,” and that the courts are bound to consider the former, staying impregnable to moral fancies. Similar considerations have been supported in other jurisdictions too. In one of the earliest judgments decriminalizing homosexuality, the European Court of Human Rights in Norris v. Ireland, 1988 (hereinafter Norris)found homosexuality not in breach of Article 8 of the European Convention on Human Rights but in breach of human rights and dignities. Even the seemingly neutral Article 8 text that reads, “everyone has the right to respect for his private and family life, his home and his correspondence,” is charged with the dignity values. European courts, multiple times, have read it as an obligation on the state to counter the phenomenon affronting human dignity (particularly in Khadija Ismayilova v. Azerbaijan and Beizaras and Levickas v. Lithuania). Self-determination and societal respect too have been read into dignity values (A.M.V. v. Finland). To that effect, the dignity discourse becomes a key import for human rights’ realm, particularly for those who have been subdued and marginalized by societal moralities. Hence, Justice Ryssdal, in Norris, keeping in mind the difference that Justice A.P. Shah would purport years later between the two moralities, opined that “although members of the public who regard homosexuality as immoral may be shocked, offended or disturbed by (it), this cannot on its own warrant the application of penal sanctions.”
From the discussions above and the many meanings of Dignity, it is sufficiently clear that the conception of dignity in the constitutional realm (and even in natural law realms) is much refined and favourable for our modern projects of ensuring equality and fair treatment and banishment of all hierarchies (both moral and societal). The indispensable import of Dignity for human rights has also been shown. Hence, dignity from the constitutional realms should be imported into the courtrooms that are strangers to it, dispelling social moralities and popular fancies. This would hopefully relocate the correct conceptualization of dignity as a benchmark for humanity of human beings, helping correct the silences of human rights; its deficiencies that had long been approved by popular fancies.
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