Wednesday, 23 September 2020 Subjects beyond the scope of Online Learning
Riya Rajayyan Wednesday, 9 September 2020

The significance of dignity in human rights jurisprudence

Riya Rajayyan
Wednesday, 9 September 2020

The significance of dignity in human rights jurisprudence

The Constitution Bench of the Supreme Court struck down a part of Section 377 of the Indian Penal Code as unconstitutional as it offended the right to privacy on September 6. As noted in K.S. Puttaswamy, privacy has been treated as a fundamental right and a premise for this upliftment was that the privacy of the individual is an essential aspect of dignity.

Section 377, a 158-year-old colonial law, refers to 'unnatural offences' and says whoever voluntarily has carnal intercourse 'against the order of nature' with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term, which may extend to 10 years, and shall also be liable to pay a fine.

The following passage from the said judgement brings home the notion of dignity.

“From the aforesaid, it has to be appreciated that homosexuality is something that is based on sense of identity. It is the reflection of a sense of emotion and expression of eagerness to establish intimacy. It is just as much ingrained, inherent and innate as heterosexuality. Sexual orientation, as a concept, fundamentally implies a pattern of sexual attraction. It is as natural a phenomenon as other natural biological phenomena. What the science of sexuality has led to is that an individual has the tendency to feel sexually attracted towards the same-sex, for the decision is one that is controlled by neurological and biological factors. That is why it is his/her natural orientation which is innate and constitutes the core of his/her being and identity. That apart, on occasions, due to a sense of mutuality of release of passion, two adults may agree to express themselves in a different sexual behaviour which may include both the genders. To this, one can attribute a bisexual orientation which does not follow the rigidity but allows room for flexibility.” (...)

Justice Rohinton Fali Nariman said, "The LGBT community has a fundamental right to live with dignity, such groups are entitled to protection of law." This evolving concept of dignity has encompassed liberal individualism as well as collective identities into ‘we the people’, thereby bringing the aspects of inclusiveness into our Constitution.

A few takeaways from this judgement are,

The basic principle of freedom and dignity of an individual is an attribute of natural law, and it is a basic or fundamental right of all individuals in a constitutional democracy.

Dignity has a central normative role as well as constitutional value. This normative role is performed in three ways: First, it becomes the basis for constitutional rights; second, it serves as an interpretative principle for determining the scope of constitutional rights; and third, it determines the proportionality of a statute limiting a constitutional right. Thus, if an enactment puts a limitation on a constitutional right, and such a limitation is disproportionate, such a statute can be held to be unconstitutional by applying the doctrine of proportionality.

This judgement is proof of the constitution accepting change and allowing the inclusiveness of all people in our country. A country where a person of any orientation should not feel oppressed and feel a part and acceptance in the country and the constitution.

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