The conception of dignity has become fundamental to the constitutional and human rights discourses in the last few decades. International conventions like the Universal Declaration of Human Rights (UDHR) regard it as a central constitutive value. Though there is a consensus about the general and abstract notion of the inviolability and the inherent worth of all human beings, the amorphous and metaphysical nature of the concept of human dignity has rendered it difficult to be integrated into domestic laws and national jurisdictions. Critics believe that it is impossible that the concept could be developed in a way to adhere to the minimum standards of consistent and coherent legal practise, and could instead foment judicial partiality or unprincipled decision-making, or limit its scope by equating human dignity to every other fundamental right.
The purpose of this article is to analyse human dignity as an important issue in contemporary Indian society. It is divided into two parts. In the first part, it will explore the concept and legal development of human dignity in international humanitarian law. Second, it will consider the place of dignity in the Indian Constitution and its recognition through the judicial interpretation of Article 21. It will also study the development of the conception of ‘dignity-plus’. Third, it will introduce the phenomena of manual scavenging and its prevalence in India as a harassment of human dignity. Finally, it will briefly present the concept and history of Euthanasia as a developing discourse connected to human dignity.
Concept and Legal Development
The genesis of the legal development of human dignity may be located at the beginning of the twentieth century, receiving its most powerful impetus with its inclusion in the UDHR. Indeed, according to Jacques Maritain – one of the drafters of the UDHR – the open-ended and amorphous concept allowed individuals from competing for ideological camps to perceive it as an underlying theoretical foundation for human rights in their own diverse ways, whether this foundation was based on religion or natural rights, and whether the human rights sought were collective control of the market and national resources or free-market economy. Thus, especially during the Cold War, the pluralistic concept of human dignity facilitated important compromises between differing ideological and political perspectives. The International Covenant on Civil and Political Rights (ICCPR) augmented the concept by recognising its inherent and universal nature, insisting that all human rights derive “from the inherent dignity of the human person.” Scholars contend that the emphasis on dignity as a basis for all other human rights ensures that all democracies could claim its unequivocal or implied incorporation into national documents but be unwilling to define its scope and legal status. The Kantian tenet of ensuring that the inherent dignity of every individual is a legal principle is the basis for most modern constitutions. As nation-states founded on equality, democracy, and justice became the international norm, the perception that dignity may only be afforded to aristocrats was gravely challenged, and States were obligated to respect the equal dignity of all its citizens through their constitutions. Considerable substantive content was attached to the concept after the horrors of the Second World War, as a significant number of States utilised the infringement of human dignity through a multitude of atrocities as a rationale justifying the sanctions and punishments imposed upon the Axis powers.
Like there is no consensus about the legal scope of the concept of human dignity, political theorists too have found it difficult to agree upon a particular plausible meaning or predominant definition of the term. Some scholars advocate for a plural and decentralised notion of human dignity. This would allow a resolution between universalism and relativism and facilitate an overlapping consensus across various cultures, ensuring that human dignity is attached to fundamental rights, regardless of however that cultural or political system defies it. The recognition of human dignity by the State would thus be the minimum standard of rights embraced by it. Whether or not this consensus is reflected in actual practise is debatable because States may publicly condemn torture as violative of human dignity but continue to exercise it domestically. Most notions of human dignity associate it with the physical, social, and mental integrity of the individual that defines their agency in making free choices and shaping their environment. At the core of the concept for most scholars is the inherent worth of all human beings, the acknowledgement and respect of that worth by others, and the duty of the State to protect human rights. Different legislatures may agree with the fundamentals of the concept but vary regarding what constitutes inherent worth and what violates it.
Place of Human Dignity in the Indian Constitution
The makers of the Indian Constitution were agreed upon the significance of human dignity as a tool for empowerment, but its place in the constitutional scheme has been complicated by a variety of factors. The basis of the struggle for independence and the vindication of liberation manifested in a new nation and constitution was human dignity – the stark opposite of colonial subjugation, predation, and humiliation of all Indian people. The freedom movement also engendered another objective for the development of the concept, especially for individuals violently excluded from Hindu society. Whether it was for women, the ex-Untouchables, or the indigenous peoples, the promise of inherent dignity of all individuals became the foundation for social revolutions and institutional reforms. A social fact that is rarely acknowledged is that the Indian constitutional enunciation of dignity and that of the UDHR occurred at the same point in history, as the culmination of the Second World War ran almost parallel to the end of colonial rule in India. Though the Indian conception borrowed from the Euro-American perspectives of dignity, it also integrated several diverse views not only from across the country but also the Global South. Dignity in the Indian Constitution is a complex and multiple ideas, and it does not flow from any specific individual, whether it be BR Ambedkar or MK Gandhi. Instead, the Constitution ambitiously attempts a reconciliation of all perspectives to create a holistic conception of human dignity – even though it rarely elucidates it.
The term is first mentioned in the Preamble – “fraternity, assuring the dignity of the individual”, but the constantly amended Constitution does not clarify the relationship between the values of fraternity and dignity, subject to two exceptions. First, the forty-second amendment included during the Emergency of 1975-76 amends the Preamble’s reference to dignity by adding the limitation of “the unity and integrity of the Nation.” For most scholars, this is a consequence of the centralising ambitions of the Indira Gandhi government, seeking to restrict aspirations of individual liberties. Second, the combination of fraternity and dignity may be found by the insertion of Part IV-A, entitled ‘the Fundamental Duties’ of citizens by the same amendment. As various clauses enunciate the duties to promote harmony beyond religious, linguistic, and regional or sectional diversities, to renounce practices derogatory of women, to preserve the rich heritage of India’s “composite culture”, and to preserve the environment; they provide a basis for the judiciary to impose certain constitutional obligations of citizens. Indeed, legislative and judicial activism have interpreted this to institute laws against sexual harassment in workplaces or environmental jurisprudence, which has evident connections to human dignity and allows the reconciliation of the language of obligations and the language of rights. While some scholars argue that the combination of fraternity and dignity is merely an appendage to the preceding values of justice, liberty, and equality, contemporary perspectives note that these preceding values are crystallisations of core dignitarian interests. The emphasis upon dignity in constitutional adjudication arrived with the radical post-Emergency judicial activism, spurred by the infringements upon human freedoms prevalent in that period. Since then, dignity has been a key tool in the constitutional interpretation attempted by various judges.
Though Part III of the Constitution guaranteeing Fundamental Rights does not explicitly mention the term ‘dignity’, scholars have found its echoes in every right secured to all citizens. The right to equality enunciated in Articles 14 and 15 also contravenes indignities associated with caste-based discrimination propagated not only by the State but also by civil society actors, networks, and institutions, and necessitates that all individuals have the dignity of equal access to any public space. As further iterations of dignitarian concerns, the Constitution also opposes caste-based apartheid through the encouragement and authorisation of affirmative action and positive discrimination enabling the access of underrepresented populations in education, public service, and the legislature. The various freedoms articulated in Article 19 and Article 25 – speech and expression, conscience and religion, movement, trade, association – provide the foundation of basic, dignity-affirming human rights of all Indian citizens. Perhaps the loudest affirmation of human dignity embedded in the Fundamental Rights is Article 17, abolishing Untouchability and punishing any discrimination on that basis, without any qualifications. Indeed, Untouchability is in absolute opposition to the concept of dignity because it principally treats a specific group of individuals as less than human. The constitutional prohibition of it, bolstered through the Untouchability Offences Act, the Civil Rights Act, and the Prevention of Atrocities Act – the last also preventing discrimination against Scheduled Castes and Scheduled Tribes – is proof that even though the term ‘dignity’ is found rarely in the Constitution, its provisions and the resulting normative and institutional apparatus possess a remarkably pro-dignity outlook. For many years, except in cases involving the infringement of Article 17 or the rights of historically vulnerable communities, the Indian judiciary rarely articulated dignitarian considerations. In those rare cases, the enunciation of the concept advanced early interpretations of the right to privacy as a component of the rights to life and liberty, culminating in the 1973 Kesavananda verdict espousing dignity as sacrosanct in the basic structure of the Constitution. There were echoes of the concept in judicial history. However, in Unni Krishnan vs State of Andhra Pradesh (1955), the Supreme Court elaborated that the right to life also possessed other rights – including the right to privacy, to travel abroad, and the right against solitary confinement, handcuffing, delayed execution, custodial death, and public hanging – all fundamental to human dignity. The farthest-reaching assertion of dignity rights arrived through the adjudicatory reformulation of Article 21 by the Maneka Gandhi vs Union of India (1978) verdict, which emphasised that an individual may not be deprived of their life or liberty except through the due process of law – or the procedure established by law, which is also fair, reasonable, and just. Presently, any judicial engagement with Article 21 and human dignity concerns the constitutional meaning of a good life. In Francis Coralie Mullin vs The Administrator, Union Territory of Delhi and Others (1981), Justice Bhagwati emphasised that the right to life “includes the right to live with human dignity and all that goes along with it.” This also enabled specification of the components of a dignified life, including adequate nutrition, shelter, freedom of knowledge, speech, or movement, and stressed that every act “offending human dignity” would constitute a deprivation of the right to life. In Badhua Mukthi Morcha vs Union of India and Others (1984), the right to a dignified life was expanded to ensure special protection to individuals in bonded labour or destitution.
The concept of human dignity has experienced a jurisgenerative articulation in India. This is evidenced by the twin developments of constitutional judicial review and public interest litigations. In the case of the former, what began as interventions into unfair practises of preventive and punitive detention has transformed into the power of the judiciary to invalidate, restrict, or strongly disapprove of any normative prescription and institutional practise that displays a “barbarity hostile to the goal of human dignity and social justice” according to Justice Krishna Iyer. In the latter, after the Guruvayur Devaswom Managing Committee vs CK Rajan (2004) verdict recognised that the destitute paralysed by “ignorance, indigence, or illiteracy” were denied access to justice, the Supreme Court ensured that through the emergence of public interest litigations and pro bono publico actions, it could provide relief to prison inmates, free legal aid, and speedy trials – to secure the unhindered maintenance of human dignity. These iterations have transmuted articulations of human dignity into soteriological projects through a jurisprudence of normative empowerment. Indeed, the rights against exploitation enshrined in Articles 23 and 24 not only prohibit child labour, forced labour, bonded labour, and labour below the statutory minimum wages, but also guarantee that individuals are protected their right to a dignified and free life. Dignitarian articulations have also found expression through complex adjudications rendering institutional exploitation in prisons, psychiatric care, and women’s remand homes, and corporal punishment in schools as constitutionally illegitimate and violative of a dignified life. The co-equal responsibility of all State actors and frameworks to guarantee such a life are made more extensive through the Directive Principles of State Policy enshrined in Part IV of the Constitution. It remains to be seen, however, whether these judicial decisions advance chief considerations of equality or liberty rights or remain confined to rhetoric.
Presently, the conception of human dignity has evolved into ‘dignity-plus’ perspectives. Where earlier this ‘plus’ was fraternity, it has now expanded to signify dignity as privacy of intimate forms of life and the recognition of identity as the difference in full human personhood rights. Such reasoning entails that neither the State nor its laws, nor the custodians of faith, may criminalise legal conduct that oppose dominant social moralities. The decriminalisation of homosexuality through the repealing of Section 377 of the Indian Penal Code in the Navtej Singh Johar vs Union of India (2018) verdict may be viewed as arising from the dignity-plus judicial perspective. If every individual is entitled to a dignified life, they are entitled to however they want to live it, restricted to legality and public order. The emergence of the dignity-plus concept ensures that every individual is secured the constellation of rights and liberties that allow and bolster human dignity.
Manual Scavenging
Manual scavenging or the practise of cleaning or carrying human excreta has been rampant in Indian society, performed by individuals belonging to the lowest castes or falling outside the caste hierarchy, and generally compelled by destitution or desperation to do so. The Indian government and civil society view this as a serious matter of concern, not only because such an occupation is unbefitting a civilised democratic society, but also because the engagement of any human being in it is contrary to any conception of human dignity. Most scholars acknowledge that poverty and hunger produce helpless individuals compelled to various indignities but find manual scavenging as one of the worst iterations of it. The definition of manual scavenging has undergone a transformation over the years. The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 defined a manual scavenger as an individual “engaged in or employed for manually carrying human excreta” and prohibited their employment as a criminal offence, exhorting urban centres to “correct the historical injustice and indignity suffered” by them. However, the reality of the continuing prevalence of manual scavenging necessitated the enacting of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act in 2013. This Act widened the scope of manual scavenging through a more detailed definition, where a manual scavenger is any individual engaged or employed by any local authority, contractor, or agency for “manually cleaning, carrying, disposing of, or otherwise handling in any manner, human excreta in an insanitary latrine or in an open drain or pit…or on a railway track.” It allows central and state governments to identify and notify any other space or premises where such disposal “before the excreta fully decomposes” is prohibited, to ensure that the proscription of the practise has the widest possible application.
The objective was to ensure more stringent and precise identifying, halting, and punishment of those employing manual scavengers. However, critics believe that these definitions are nevertheless incomplete, and their eradication from society requires that they be more detailed and less vulnerable to ambiguities. They prefer definitions like that of the Asian Human Rights Commission (AHRC), where manual scavenging in India is officially denoted as involving the “lifting and removal of human excreta manually at private homes and toilets maintained by municipal authorities .”The AHRC moves further in specifying the tools and methods utilised for gathering and transporting human excreta from the community or dry latrines – “bare hands, brooms or metal scrapers into woven baskets or buckets”, carried on their heads “or against their hips (and in wheelbarrows if they can afford it).” It also enumerates the various spaces in which such excreta is disposed, including water bodies, sewers, septic tanks, drains, and railway stations. The purpose was to ensure that no authority be able to exploit definitional lacunae to continue such a practise.
Though the “dehumanizing practice” has been prohibited in India since the 1990s, and the government asserted in July 2021 that no deaths had occurred in the country due to manual scavenging, labour activists claim otherwise. In the same year, the government announced several measures under the Swachh Bharat Abhiyaan (Clean India initiative) to wholly eradicate the practise by August of that year. However, the Minister of State for Social Justice and Empowerment Ramdas Athawal also announced during parliamentary proceedings that with more than sixty-six thousand nine six hundred ninety-two manual scavengers identified across the country, the goal would be difficult to achieve. However, the government did state that nine hundred forty-one sanitation workers died while cleaning sewers and septic tanks but insisted that these were not manual scavengers. For activist Bezwada Wilson of the Safai Karmachari Andolan, working to eradicate manual scavenging, these reports are incomplete and untrue and aimed at concealing the lack of implementation of the 2013 Act. He argued that more than four hundred seventy-two deaths due to the practise had been recorded nationwide between 2016 and 2020, with twenty-six deaths recorded in 2021, until July. A study conducted by the World Health Organisation (WHO), World Bank, International Labour Organization (ILO), and WaterAid in 2019 emphasised that the prevalence of the practise could be attributed to paucities in legal protection and governmental enforcement, exacerbated by the financial deprivation experienced by the workers. It also specified that manual scavengers are often inadequately and irregularly paid, are extorted, or compensated with leftover food or staple food items. A 2014 report by the Human Rights Watch claimed that the rigid hierarchy of the caste system demanding lack of social mobility, result in individuals refusing such employment being threatened and coerced by dominant castes, who continue to believe in their social superiority and influence over those located lower on the system. Activists also caution against the health risks associated with this hazardous practise, such as asphyxiation due to toxic gases, and exposure to diseases like cholera, hepatitis, meningitis, jaundice, and skin disorders. The slew of deaths occurring due to this practise may be attributed to the lack of access to appropriate security gear and equipment, and dearth of precautions in septic tanks and sewers (such as the carrying of lamps with concentrated methane gas). Delhi has announced sewage cleaning machines aimed at replacing manual scavengers but is encountering problems of implementation due to narrow lanes inhibiting the access of larger machines, and poorly manufactured septic tanks rendering the functioning of the machines difficult. Another survey conducted by the Rehabilitation Research Initiative (RRI India) and South Asian Labour Network (SASLN) in twenty-seven states, between 2017 and 2021, found that the number of manual scavengers including children and those working in bonded labour, has increased, despite the government claiming otherwise. It focused on definitional and implementational lacunae in the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act that has allowed the continuation of the practise and restricted several victimised individuals from their deserved compensation and rehabilitation. It found that the highest number of manual scavengers were employed in Hazaribagh, Jamtara, and Godda in Jharkhand, and though more than seven hundred sixty-three workers were found in the state, only one hundred twelve fell under the categorisation and protection of the Act. It emphasised that though manual scavengers employed in dry latrines constructed under the Swachh Bharat Abhiyaan were largely women, unknown middlemen were coercing children under twelve years of age – especially girls – into manual scavenging in local settlements. The highest number of child manual scavengers was found in Sangli and Satara in Maharashtra, with twelve thousand five hundred sixty-two boys between the ages of eight and thirteen engaged in the practise. Similarly, high numbers were also discovered in semi-urban and rural Tamil Nadu, Tripura, and Madhya Pradesh, were local strongmen ‘ service providers’ coerce child workers through cycles of debt. A fraudulent organisation of twenty to twenty-five individuals called the Mahila Pratha Andolan was formed in Chhattisgarh – with the highest number of resident ‘service providers’ – which pretended to employ and protect scavenging families, instead disseminating misinformation about the legality of the practise, and trapping the workers in hazardous and inhuman working conditions. The indignities faced by women employed in manual scavenging are more acute. Though they are lured by the promise of a better life, higher pay, and work in more powerful families by ‘service providers,’ they find themselves ensnared in inescapable cycles of indebtedness. More than three thousand one hundred eighty-nine women reported violence, assault, and rape threats, approximately two hundred sixty-three women stated that they had been raped or molested by ‘service providers’ and private house owners, and six women confirmed that they had been trafficked as manual scavengers and sexually exploited by private house owners for more than three years. Though most of them reported that they had attempted to register official complaints about these crimes, it was found in a scathing indictment of the law enforcement apparatus that more than ninety-five of these cases remained unrecorded due to their caste, gender, and nature of the occupation. The COVID-19 pandemic further worsened this crisis, as workers contracted the disease during the first two waves, and the strict lockdowns trapped women manual scavengers into unsafe environments controlled by private contractors and sub-letting agencies in rural areas.
For most scholars, given the dignitarian provisions in the Constitution and the values of equality and justice envisioned in the struggle for independence, the pervasiveness of such a practise is a blemish on the Indian democracy and on the ideals it espouses.
Euthanasia
The term ‘Euthanasia’ is derived from a combination of Greek words “eu” and “thanatos” meaning ‘a good death’ and was first utilised by the English philosopher Francis Bacon. He believed that the purpose of medicine is to alleviate pain and restore health, and the relief it provides may not necessarily arise from a cure but from a peaceful and easy death. It was utilised across history to allow a painless, assisted death for patients suffering from serious injuries, organ failure, or incurable diseases. However, as revolutions in technology rendered it possible to extend the lives of individuals even without the possibility of recovery, questions about what constitutes the end of life became complicated. The issue has become contentious in contemporary Indian society, as there are disagreements regarding whether the right to life and all the other rights accompanying it also includes the right to death. Where some scholars interpret the right to life as engendering the continuation of life – natural or artificial, others interpret the right as being fundamental to individual liberty – as we are entitled to live as we please, we may die as we please as well. The latter believe that there is no reason why euthanasia could be morally impermissible, and though it is important that the State must preserve and protect human life, it must also ensure that life is dignified and without pain.
There are several types of euthanasia or compassionate assisted death, and it may only be attempted by a physician. Passive euthanasia is the most common type elucidated in debates and has been legalised in India on 7th March 2011. It refers to the intentional discontinuation of treatment or artificial life support – including various devices to support breathing and heart, serum and blood transfusions, artificial oxygen supply, permanent catheters – for patients suffering from incurable diseases and in tremendous pain, so that death occurs physically due to organ malfunction. Active euthanasia involves direct action to cause the death of severely ill and suffering patients through medical procedures such as intravenous injections. The decision to allow active euthanasia may be made by adults and conscious patients, or by their relatives, friends, or physicians if they are unconscious. Another type may be assisted suicide, where a mentally stable patient enduring a degenerative end-stage disease that will lead to a complete loss of cognitive capacities and death, denies hospitalisation, treatment and requests a premature and painless death. Eugenic euthanasia (direct or indirect) entails medical intervention to cause the death of individuals with severe intellectual, motor, and psychological disabilities who are unable to live painlessly and independently. It has recently and controversially entailed the late-term abortion of foetuses with malformations and incurable diseases that would result in neonatal death immediately after birth. The most vocal activism about euthanasia has arisen from advocates of voluntary euthanasia or the right to die. Aiming to reduce uncertainties about end-of-life care, individuals may voluntarily sign a written statement (living will) testifying the length and kind of treatment they desire, even refusing treatment if they are eventually rendered mentally or physically incapable of deciding about their death. The divergences in the types of euthanasia and their relationship to morality, religion, and tradition complicate the possibility of legalisation further and render it difficult to formulate overarching policies. The chief complicating factor is that of patient autonomy and choice. Proponents of euthanasia believe that every individual has personal meaning they ascribe to life. The principle of autonomy, or the capability to make and enforce deliberate, decisive, and meaningful choices consistent with values, beliefs, and morals, entails that every individual also has the right to define the borders of their own lives and death. If patients are entitled to decide what medical information they divulge or what treatment they receive, as components of the right to life, they may also have to agency to end their lives if its continuation is no longer painless or autonomous. This is generally the loudest argument for euthanasia: patients in permanent vegetative states having irreversibly lost any ability for conscious experience, and on mechanical support, no longer have a meaningful life. Their families may be financially unable to continue the medical expenses involved or their continued treatment may be depriving other patients with more serious but curable diseases from medical treatment. The permanency of such a state however is gravely controversial because there have often been patients who have revived out of a vegetative state, and the decision to end an individual’s life must be taken by a physician acting in good faith. In general therefore, proponents have found the refusal or denial or treatment defensible if the patient has full mental capacity or is represented by a regulator, when they have provided written and signed instructions, when the intervention includes certain ethical criteria such as a serious incurable disease that will lead to death with absolute accuracy at a predicted time, when the comparison between the benefits and the burden is disproportionate, or if the patient no longer has a dignified quality of life. All these arguments find their basis on respecting the autonomy of patients and their personal right to possess and control their body and life without the intervention of another individual or law. It is here that the consideration of human dignity becomes evident. Every individual possesses an inherent dignity. If they are terminally ill but mentally capable, they hold the inalienable right to evade unbearable pain and suffering and choose a dignified and compassionate death. From the perspective of human rights, every individual has the right to the freedom of thought and free consciousness, and thus the right to employ their physical and mental integrity to decide regarding their privacy and self-determination. This autonomy is absolute and crucial to human personality. Proponents of euthanasia believe that the desire to control one’s death or to die in a comfortable family environment is integral to an individual’s dignity, and the ability to make this choice may be more humane than an undignified and painful life.
References
- Akhilesh, P., & Kumar, R. (2022, January 26). Manual Scavenging Is Continuing Unabated in India – and Even Children Are Forced Into it. The Wire.
- Baxi, U. (2014). The place of dignity in the Indian Constitution. In M. Duwell, J. Braarvig, R. Brownsword, & D. Mieth, The Cambridge Handbook of Human Dignity (pp. 429-438). Cambridge: Cambridge University Press.
- Kontomanolis, E. N., Kenanidou, E., Kalagasidou, S., Papamanolis, V., & Fasoulakis, Z. N. (2018). The Conflict between Euthanasia and Human Dignity: A Different Glance. Ulutas Medical Journal, 184-193.
- McCrudden, C. (2008). Human dignity and judicial interpretation of human rights. The European Journal of International Law,, 655-724.
- Rao, N. (2008). On the use and abuse of dignity in constitutional law. Columbia Journal of European Law, 201-256.
- The Wire Staff. (2016, July 28). What Is Manual Scavenging? The Wire.
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