Dignity & Privacy; Union of India Vs. Fancy Babu [Kerala High Court, 03-10-2016]

Contents

Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 – Right to Dignity and Privacy – Disabled Woman – Employer’s insistence on the employee’s physical presence under impossible—and perilous— circumstances should be taken as a display of official hubris.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

P.R. RAMACHANDRA MENON & DAMA SESHADRI NAIDU, JJ.

O.P. (CAT) No. 182 of 2016 (Z)

Dated this the 3rd day of October, 2016

PETITIONER(S)/RESPONDENTS IN MA

1. UNION OF INDIA, REP. BY GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI-600 003.

2. DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, PALAKKAD.

3. THE DIVISIONAL FINANCE MANAGEER, SOUTHERN RAILWAY, PALAKKAD.

BY ADVS.SRI.TOJAN J.VATHIKULAM,SC,RAILWAYS SRI.G.RAJAGOPAL (SR.)

RESPONDENT(S)

FANCY BABU, KOTTAYAM

R1 BY ADV. SRI.MARTIN G.THOTTAN R1 BY ADV. SRI.M.P.VARKEY

JUDGMENT

Dama Seshadri Naidu, J.

Introduction:

Fate served a cruel blow to a woman in her battle of childbirth. Paralyzed shoulders below, she has become a living lump of meat with unimpaired cognitive faculties, though—only to make herself acutely aware of her vegetative existence. She has all but been finished, save for her spirit to live and for her dignity to hold up as a woman. And now, is her employer bent on completing the job—stifling her spirit to live and destroying her dignity to be a woman?

2. Disabled is a pejorative; differently-abled is a euphemism, but capable of recognizing and, in fact, redeeming the calamitystricken— yet still resilient—spirit of the physically challenged. The Legislature has lent its helping hand: It has brought out

# Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995

(‘the Act’). The Judiciary, too, has recognised that there is more to a human being than mere locomotion: It has beneficially, expansively interpreted the law. But the employer holds the rule-book and shows its letter but forgets its spirit—even if it were a textualist.

# The Dispute

3. This is the second round of litigation involving a disabled woman, who has been paralyzed shoulders below. The first respondent (‘the employee’) has no control not only of her lower limbs but also of her bladder and bowls; she is unable to regulate her primary biological requirements, such as urination, for which a catheter has been fixed on a permanent basis.

4. Initially, in 1998, while the employee was pregnant for the second time, she suffered a ‘traverse myelopathy’ at D4 level. In effect, the progressive degeneration of the lower limbs has eventually resulted in complete paralysis confining her to bed. As a result, in 2002, she proposed to retire voluntarily, and the Indian Railways (‘the employer’) accepted it. Nevertheless, in 2009, having come to know of the beneficial provisions of the Act, the employee approached the Central Administrative Tribunal (‘the Tribunal’) seeking reinstatement and extension of benefits under the Act. The Tribunal, through Annexure MA-1 order dated 05.02.2010, allowed the Original Application, setting aside the order of retirement. The Tribunal, as a result, directed the employee’s reinstatement with effect from 15.02.2002.

5. Though the employer carried the matter in appeal before this Court, it failed: Through judgment dated 25.08.2014 in W.P. (C) No. 15871 of 2010, this Court affirmed the Tribunal’s order.

6. Later, the employee filed MA No. 180 of 2015 under

# Rule 24 of the CAT (Procedure) Rules 1987

complaining that the Tribunal’s order, as has been confirmed by this Court, has not been implemented. Eventually, on an appreciation of the rival contentions, the Tribunal rendered an order on 29.02.2016. Treating it as a special case, the Tribunal has held that the employee need not report to office to receive her salary. Further, the Tribunal has directed the employer to explore the possibility of ‘voluntarily’ retiring the employee with all service benefits. Aggrieved, the employer assails that order in this OP.

# The Submissions: The Employer’s

7. Sri G. Rajagopal, the learned Additional Solicitor General, appearing for the Railways, has strenuously contended that though the respondent employee has merely sought this Court’s judgment in W.P.(C) No. 15871 of 2010 to be implemented, the Tribunal has gone beyond the prayer and directed that the employee need not report to duty. And the monthly salary should be paid to her regularly. In elaboration of his submissions, the learned Addl., Solicitor General has drawn our attention to the provisions of the Act, especially Section 2(i)(o) and Section 33, as well as Section 47 of the Act.

8. In further elaboration of his submissions, Sri G. Rajagopal has submitted that even the medical report relied on by the Tribunal has not expressly mentioned that the employee is totally incapacitated from attending duty. Having initially contended that there is no provision, even under Section 47 of the Act, for creating a supernumerary post, the learned Additional Solicitor General has further contended that the employer is in trust of public money; it is indeed against the public interest to let a person draw salary without her discharging any duties—without even attending the office, at that.

9. In this connection, the learned Additional Solicitor General has drawn our attention to communication, dated 16.02.2015, addressed by the employer to the employee directing her to report to duty. Eventually, Sri G. Rajagopal has, summing up his submissions, contended that the ratio of the judgments relied on by this Court and the Tribunal earlier must be read and understood in the factual context of those cases. It has no application here.

10. According to the learned Additional Solicitor General, to get the service benefits, such as salary, it is sine qua non for an employee to discharge her duties. If a person is under disability, he contends, the employer will always devise a method of providing a suitable alternative employment. In this case, the Tribunal has not only dispensed with the employee’s obligation to attend office but has also compelled the employer to pay the service benefits to her, though she does not wish to visit the employer.

# The Employee’s

11. Per contra, Sri Martin G. Thottan, the learned counsel for the employee, has submitted that it is not for the first time the Courts have directed the employers to give full effect to the beneficial provisions of the Act: Where an employee has been totally incapacitated and has rendered herself immobile, it is inequitable and unconscionable to compel the employee to attend office, much less to discharge functions.

12. According to the learned counsel, in W.P.(C) No. 32464 of 2008, a learned Division Bench of this Court, under almost similar circumstances, has specifically observed that under the beneficial Section 47 of the Act, if an employee is immobile, there can be no compulsion that the person should visit the office or discharge the functions. Drawing our attention to

# Kunal Singh v. Union of India and another, (2003) 4 SCC 524

and

# Bhagwan Dass and another v. Punjab State Electricity Board, (2008) 1 SCC 579

the learned counsel has strenuously contended that the judicial interpretation of the beneficial provisions, such as Section 47 of the Act, admits of no controversy. The impugned order is unassailable. Accordingly, he urges this Court to dismiss the Original Petition as devoid of merit.

13. Heard Sri. G. Rajagopal, the learned Additional Solicitor General of India appearing for the petitioners, and Sri Martin G. Thottan, the learned counsel for the respondent, apart from perusing the record.

# Issue

14. The employee, debilitated and invalidated, was ordered to be reinstated. She was reinstated. The employer, however, directed the employee to remit back all the terminal benefits paid to her earlier and to report to duty. The employer justifies its insistence on the employee’s reporting to office: It is necessary to mark her attendance, for salary is paid on the basis of attendance. But the Tribunal dispenses with the employee’s physical presence in office. Can the Tribunal’s order be sustained?

# Discussion

15. Though the learned Addl., Solicitor General has on occasions referred to the earlier rounds of litigation and, in his words, the untenability of the orders and the judgment rendered therein, we do not wish to revisit the lis, which has attained finality. Therefore, we confine ourselves to the issue of justifiability of the order in M.A. No. 119 of 2015 rendered by the Tribunal, for it alone has been assailed in this Original Petition.

# Medical Report

16. The learned Tribunal, in our view correctly, before coming to any conclusion on the issue—especially given the technicality involved—has referred the matter to a competent medical officer—the Medical Officer of the very employer, at that. As seen from paragraph six of the impugned order, the Medical Officer examined the employee on 07.08.2015, and rendered a very detailed opinion, a part of which reads as follows:

Smt. Fancy Babu, 48 yrs., female suffered from acute onset of Bilateral Lower Limb weakness, loss of sensation below the level of chest and loss of urinary bladder control on 24.04.1998. The onset was acute and progression rapid. She was in 9th month of pregnancy that was terminated on 27.04.1998 at Govt. Medical College, Kottayam. She was diagnosed as having traverse myelopathy at D4 level, Grade Zero power both lower limbs due to extra dural compression (mass of 5×1 cm on MRI spine)

[S]he is having no power in both lower limbs. There is no sensation below the level of nipples. She has frequent, sudden painful involuntary contraction of both lower limbs triggered by attempts at manipulating the limbs. She has had frequent episodes of bedsores and chest infection due to her bedridden state. She is able to move around on a wheel chair with support from bystander. She is on continuous bladder drainage and gets frequent urinary tract infection.

[P]atient is conscious and oriented. Her intelligence and attention are normal. Her mood is depressed with negative ideology due to long standing chronic illness and its complications. This has impaired her ability to recall certain events on memory testing.

She has no power of both lower limbs and there is spasm of the muscles of the lower limbs that produces involuntary extension on maneuvering the limbs. There is complete loss of sensation of the lower limbs up to D6 dermatome level. There is no control of bladder or bowel function, she is on continuous bladder drainage and she gets fecal incontinence.

Patient has normal power and function of the upper limbs. She needs assistance of a person to stand and is able to move around only on a wheel chair. To be put on a wheel chair she needs assistance.

These difficulties are present due to complete transaction of the spinal cord and are unlikely to improve further. These disabilities have rendered her wheel chair bound, dependent for activities of daily living and she needs constant supervision and care.”

(emphasis added)

# Degenerative Disorder

17. In the first place, the employee has been disabled since 1998. The medical examination took place in 2015. In all these years, she had been degenerating. The doctor has specifically observed that the employee completely lost sensation in her lower limbs; she has no control over bladder or bowel function; she has been on continuous bladder drainage. And she has been suffering from fecal incontinence, too. The tipping point in this sad saga is the doctor’s further observation that the employee is wheel-chair bound and dependent for activities of daily living. She needs constant supervision and care.

18. Indeed, there is an element of truth in the learned Additional Solicitor General’s contention that the MA simply prays for enforcement of this Court’s judgment. In the light of the changed circumstances, especially based on the employer’s decision to compel the employee to attend office, the Tribunal has acted pragmatically and desired to have an expert opinion. So it had.

19. After going through the medical report, we reckon it does not need any special medical knowledge, apart from some common sense, to realise the pathetic position the employee has been placed in. We have been called upon to balance the equities: the interest of the employer and that of the employee. We agree with the learned Additional Solicitor General that the exchequer should not suffer because of misplaced sympathies—if they were.

20. Yet we must deal with the issue with a human touch, for the letter of law is not dead cold; it has the warmth of human spirit infused into it. Here, the employee has been permanently paralyzed; she has no control over much of her body—including the vital organs and private parts. Given the modesty of woman, the employer, still, expects a crippled woman employee to visit the work place, and, if necessary, discharge the functions to be assigned to her—all this with a urinary catheter permanently fixed and also with bowl incontinence: her modesty exposed and privacy invaded.

21. The doctor has also acknowledged that the employee is prone to infections. Need we say an unguarded workplace is a breeding ground for infections! By insisting on the employee’s presence under these circumstances, the employer endangers, we reckon, the life of not only this employee but also other employees. We cannot forget two things: The employee is a woman; she has, above all, her privacy and dignity at stake.

# Privacy

22. True, having regard to the employee’s disability, the employer’s insistence that she should physically mark her attendance daily in office violates, we reckon, another constitutional safeguard: Privacy. But here the doctrine of dignity takes into its fold ‘privacy’, too, for it is a facet of a woman’s dignity. Hence, elaboration avoided.

# Dignity: Illusory, Peripheral, or Central?

23. A constitution of any republic, however steeped in antiquity, is not the tyrannical command of the dead past. It is a live instrument—organic. It is a collection of ideas and ideals for all times, deliberately designed to be amorphous and malleable, capable of adopting itself to suit the crisis it is called upon to address and redress. Thus the adept hand of the nation’s polity adopts it to changing circumstances. Originalism runs its writ only to a limited extent: We should adopt the meanings of the constitutional expressions as have been employed by the framers, say, the Constituent Assembly.

24. The society is complex, diverse, and changing, so shall its response be to the issues these changes bring in. What is not a right today may be a penumbral or peripheral right tomorrow, and it may further get elevated to be an entrenched central right the next day. Rights—for example, dignity and privacy—may no longer be the luxuries of the rich. They are essential, concrete, and real. We will see how the jurisprudential justification has come about from various jurisdictions on this count.

25. Laurence H. Tribe, et al., in their On Reading the Constitution, have tellingly explained the expanding constitutional horizons:

“Many of those who got the text of the original Constitution or voted to approve it . . . supposed that that the meaning, at least of the more general terms being deployed, was inherently variable. They supposed that the examples likely to occur to them at the time of the creation would not be forever fixed into the meaning of the text itself. Thus, even supposing that what the Framers thought about the Constitution should be the touchstone of constitutional interpretation, it need not be the case that the Constitution’s broad language would have to be interpreted in such a way that it speaks only to issues that already existed 200 years ago.” Pp 9-10, Harvard University Press, 1991

26. In adjudication of disputes—even in judicial review—the doctrine of dignity may not play a dominant role, but the underlying understanding of the doctrine does matter. Dignity is often subjective and elusive to be a firm constitutional principle. We may examine this elusive, yet diffuse, doctrine in some detail.

27. To provide the background, we may observe that a tussle between an employee and an employer is mundane—seemingly. However commonplace a jurisprudential phenomenon is, if it involves the degradation of human right, say, dignity, it shall not pass without reproof. The State has a positive duty to protect human dignity, and the Court is a constituent of the State. Inseparable is the aspect of human dignity in the discourse of human rights. If it is not hyperbole, even a dead body has dignity, reflected through funeral rites and rituals.

28. We will examine the legal landscape from afar to the near. To begin with, we must acknowledge that dignity as constitutional concept is nebulous and, at best, penumbral—but real. True, for some it is a vacuous concept without bounds, almost unreal apart from being polemical. As we will see in a while, there are constitutions that expressly engrafted ‘dignity’ as an enforceable constitutional right, a foundational value. Some—for example, India—have left it to be inferable as a penumbral right.

29. The three core international human rights instruments which laid the foundations of the international human rights order —the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Cultural and Social Rights (ICECSR)—all assert that the rights to be respected and to be upheld in terms of these instruments “derive from the inherent dignity of the human person.” And this is repeated in many international human rights conventions that were subsequently adopted: for example, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (1984); Convention on the Elimination of All Forms of Discrimination Against Women (‘CEDAW’ 1980), International Convention on the Elimination of All Forms of Racial Discrimination (1966); Convention on the Rights of the Child (1989); Convention on the Rights of Persons with Disabilities, (2006). 26 Am. U. Int’l L. Rev. 1377 2010-2011

30. Thus, International Human Rights Instruments have, without exception, stressed on certain inalienable rights and freedoms: the Right to Life, Liberty, Security—and Personal Dignity. The rights guaranteed under Part III of our Constitution are, indeed, in conformity with those international instruments.

31. CEDAW deals with the woman’s right to a dignified life. The Declaration On the Elimination of Violence Against Women reaffirms the right to life, liberty, and security; it aims to fill up the gaps left by CEDAW. Further, ICESCR and ICCPR also include ‘dignity’ as an aspiring value both in their Preambles and in the texts. They emphasize that all human rights emanate from the inherent dignity of the human person.

32. Dignitas hominis is classical Roman thought; it signifies ‘status’. It aims at according honour and respect to someone who was worthy of them. In Roman legal systems, dignity was a right of personal status. Criminal and civil remedies were frequently provided if dignity in this sense was infringed. But in some scattered classical Roman writings, a second, broader concept of dignity was present. If we take Cicero, he prefers to employ dignitas to elevate the dignity of human beings as such, not dependent on any status. In this use, man is contrasted with animals. {From ‘Human Dignity and Judicial Interpretation of Human Rights.’ European Journal of International Law; http://ejil.oxfordjournals.org/content /19/4/655.full}

33. As recently as in 2005, Nelson Mandela, in his Trafalgar Square speech urged that ‘[o]vercoming poverty is not a gesture of charity. It is as an act of justice. It is the protection of fundamental human rights, the right to dignity and a decent life.’ In the Australian Government’s apology to the indigenous ‘stolen generation’, the Prime Minister apologized for past ‘indignity’ inflicted.

34. Despite its relative prominence in the history of ideas, it was not until the first half of the 20th century, however, that dignity began to enter legal, and particularly constitutional and international legal, discourse in any particularly sustained way. The use of dignity in legal texts, in the sense of referring to human dignity as inherent in Man, comes in the first three decades of the 20th century. Several countries in Europe and the Americas incorporated the concept of dignity in their constitutions: in 1917 Mexico; in 1919 Weimar Germany and Finland; in 1933 Portugal; in 1937 Ireland; and in 1940 Cuba. After the second world war, in 1946 Japan, in 1948 Italy, and in 1949 West Germany incorporated dignity in the constitutional documents. {6 Ibid}  And in 1950, India.

35. Much of the inspiration for the subsequent use of dignity in international and regional human rights texts derives from the use of dignity in the UDHR. The Preamble mentions dignity in two places:

‘[w]hereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world …’,

And a little later:

‘[w]hereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedoms … .’

Article 1 takes up this theme and provides:

‘[a]ll human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.’ There are also several more specific uses of dignity in the remainder of the text, as, for example, in Article 22. {7 Ibid}

36. Post the second world war, there was a dramatic increase in the use of dignity in the international human rights law context. In fact, the preamble to the Slavery Convention of 1956 refers to it; so do the International Labour Organization (ILO) Conventions.

37. The trend has not stopped, as was evident from the recent International Conventions on Discrimination against Women (1979) and the Prevention of Torture (1984). Major conventions on the Rights of Children (1989), the Rights of Migrant Workers (1990), Protection against Forced Disappearance, and the Rights of Disabled Persons (2007) have all included references to ‘dignity’. In fact, the Vienna World Conference on Human Rights in 1993 has adopted dignity as the central organizing principle. Article 108 of the Convention deals with the prohibition of gender-based violence and harassment. Articles 16 and 25 of the Convention on the Rights of Persons with Disabilities deal with the right to health and the right of disabled persons to be treated as autonomous individuals.

# Judicial Recognition of Human Dignity: South Africa

38. Section 10, Chapter 2, of the Constitution of the Republic of South African, dealing with Bill of Rights, mandates that everyone has inherent dignity and the right to have their dignity respected and protected. Though there is no specific constitutional provision protecting family life, in

# Dawood v. Minister of Home Affairs, [2000] 5 Law Reports of the Commonwealth 147

the South African Supreme Court drew upon Section 10. It has held that any legislative provision imposing fetters on citizens’ right to enter into a marriage relationship or to sustain such a relationship or to honour their obligations to one another in terms of a marriage relationship infringes their right to dignity. According to the Supreme Court, ‘dignity’ is not only a value fundamental to the Constitution but also a justiciable and enforceable right to be respected and protected.

# The European Union (as then existing)

39. In

# Tyrer v. UK, 2 EHRR 1, at para. 33

the European Court of Human Rights, for the first time, judicially recognized human dignity. It has held that a particular form of corporal punishment, administered as part of a judicial sentence, was contrary to Article 3. It was said to be an assault on precisely that which it is one of the main purposes of Article 3 to protect: a person’s dignity and physical integrity.

40. Since the days of Tyrer, the ECHR has applied dignity as a judicially enforceable human right in various contexts: fair hearing,

# Bock v. Germany, 12 EHRR (1990) 247, at para 48.

the right not to be punished in the absence of a legal prohibition,

# SW v. UK; CR v. UK, 21 EHRR (1995) 363, at para. 44.

the prohibition of torture,

# Ribitsch v. Austria, 21 EHRR (1995) 573, at para. 38

and the right to private life.

# Goodwin v. United Kingdom, 35 EHRR (2002) 447, at paras 90 – 91.

41. In

# Bland v. Airedale N.H.S. Trust, [1993] 1 All ER 821

while discussing the jurisprudential nuances of the so-called mercy killing, the House of Lords has held that one of the principles closely connected to sanctity of life is respect for the dignity of the individual human being; it is wrong for someone to be humiliated or treated without respect for his value as a person.

42. Human dignity, it is held, is not an abstract metaphysical notion; it is an established and orthodox legal concept which can be judged objectively by a court or tribunal. There is a social duty to respect the patient’s right to, and interest in, personal privacy and human dignity during what remains of his or her life.

43. In

# R. v. Secretary of State for the Home Dept., ex parte Limbuela, [2005] UKHL 66 (HL)

the asylum seekers have assailed the municipal law that, among other things, revoked the authority of the Secretary of State to provide support for asylum seekers under certain conditions. The House of Lords has referred to the Human Rights Act, 1998, and, in particular, Article 3 of ECHR. It has, then, held that where treatment humiliates or debases an individual showing a lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish, it may be characterized as degrading, falling within the prohibition of article 3.

# The USA

44. Interpreting the exact scope of the constitutional phrase “cruel and unusual” in the Eighth Amendment, the American Supreme Court in

# Trop v. Dulles, 356 U.S. 86 (1958)

has held that the basic concept underlying the Eighth Amendment is nothing less than the dignity of man. In

# Planned Parenthood of Southeastern Pennsylvania v Casey, 505 US 833 (1992)

the Court has held that part of the constitutional liberty to choose is the equal dignity to which each citizen is entitled. A woman who decides to terminate her pregnancy is entitled to the same respect as a woman who decides to carry the fetus to term; the mandatory waiting period denies women that equal respect.

45. In the context of homosexuals, the US Supreme Court in

# Lawrence v. Texas, 539 US 558, at 574 (2003)

recognizes the adults’ right to enter upon relationship in the confines of their homes and their own private lives—it is an aspect of retaining their dignity as free persons.

# Canada

46. Canada earlier had dignity incorporated in, but later removed from, its Bill of Rights. Nevertheless, the courts continued to use the idea of dignity to interpret the rights, indeed, building dignity into a central principle of adjudication. the Canadian Supreme Court in

# Kindler v. Canada, [1991] 2 SCR 779

has held that capital punishment constitutes a serious impairment of human dignity. It is said to be the ultimate desecration of human dignity.

47. In

# Law v. Canada (Minister of Employment and Immigration), [1999] 1 SCR 497

Section 15 (1) of the Constitution Act 1982, analogous to our Articles 14 and 15 of the Constitution, has fallen for consideration. The provision reads: (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

48. While interpreting Section 15 (1), the Canadian Supreme Court has held that human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. Human dignity is harmed, observes the Court, when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within the society. Human dignity within the meaning of the equality guarantee does not relate to the status or position of an individual in society per se, but rather concerns the way a person legitimately feels when confronted with a particular law.

49. In

# Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624

a provincial government’s failure to provide limited funding for sign-language interpreters for deaf persons when receiving medical services was found to violate Section 15 (1), in part, on the basis that the government’s failure to consider the actual needs of deaf persons infringed their human dignity. To cut the discussion short, we may observe that in almost all Anglo-Saxon jurisdictions, in one context or another, ‘human dignity’ has been recognized as a central constitutional canon.

# France (Civil Law Jurisdiction)

50. Granted that certain nations, such as Canada and South Africa, have explicitly mentioned ‘dignity’ in their Bills of Rights, France is one of the early jurisdictions to take judicial note of ‘dignity’ as a constitutional concept worthy of cognizance and protection. To illustrate, we may refer to a case: ‘Dwarf tossing’ is a recreational spectacle in certain pockets of France. The French Ministry of the Interior banned it, holding that it demeans the dwarfs’ human dignity.

51. A person suffering from dwarfism challenged the ban. He asserted that the ban was violative of his right to freedom, employment, respect for private life, an adequate standard of living, and right to non-discrimination. The European Court of Human Rights at Strasbourg, in

# Manuel Wackenheim v France, 22 Communication No 854/1999, U.N. Doc. CCPR/C/75/D/854/1999 (2002)

however, decided:

“Human dignity is a part of public order” even in the absence of particular local circumstances and despite the consent of the individual concerned.

# Dignity in Indian Constitutional Context

52. In his article

# Dignity as a Constitutional Value: A South African Perspective, 26 Am. U. Int’l L. Rev. 1377 2010-2011

Chief Justice Arthur Chaskalson has commented about the Indian constitutional perspective on dignity thus:

“In India, the highly respected Supreme Court has held that the “right to life includes the right to live with human dignity and all that goes along with it; .. . [that] [e]very act which offends against or impairs human dignity would Constitute deprivation pro tanto of this right to live, and … would have to be [justified] in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights.

# Francis Coralie Mullin v. Adm’r, Union Territory of Delhi, (1981) 2 S.C.R. 516, 518.

53. We may, to narrow the scope of discussion, focus on the constitutional rights of women. The state shall not discriminate against any citizen of India on the ground of sex: Article 15(1). The state is empowered to make any special provision for women. In other words, this provision enables the state to make affirmative discrimination in favour of women: Article 15(3). No citizen shall be discriminated against or be ineligible for any employment or office under the state on the ground of sex: Article 16(2). Traffic in human beings and forced labour are prohibited: Article 23(1). The state to secure for men and women equally the right to an adequate means of livelihood: Article 39(a). The state to secure equal pay for equal work for both Indian men and women: Article 39(d). The state is required to ensure that the health and strength of women workers are not abused and that they are not forced by economic necessity to enter avocations unsuited to their strength: Article 39 (e). The state shall make provision for securing just and humane conditions of work and maternity relief: Article 42. It shall be the duty of every citizen of India to renounce practices derogatory to the dignity of women: Article 51-A(e).

# Interpretation of ‘Personal Dignity’ By the Supreme Court of India:

54. Keeping abreast with other constitutional democracies, the Apex Court has jurisprudentially erected the right to human dignity on the pedestal of fundamental rights—penumbral, though. In

# Kartar Singh v. State of Punjab, (1994) 3 SCC 569

the Hon’ble Supreme Court relies on Article 21 and declares that each expression employed in that article enhances human dignity and value. In para 39 it holds that the life of man in a society would be a continuing disaster if not regulated. The principal means for such regulation is the law which serves as the measure of a society’s balance of order and compassion and instrument of social welfare rooted in human rights, liberty, and dignity. In para 365, the Apex Court observes that the recognition of the inherent dignity and of the equal and inalienable rights of the citizens is the foundation of freedom, justice and peace in the world. It is held in para 373: The foundation of Indian political and social democracy, as envisioned in the preamble of the Constitution, rests on justice, equality, liberty, and fraternity in secular and socialist republic in which every individual has equal opportunity to strive towards excellence and of his dignity of person in an integrated egalitarian Bharat. It goes on to hold that the right to life with human dignity of person is a fundamental right of every citizen for pursuing of happiness and excellence.

55. In various cases, the Hon’ble Supreme Court has interpreted ‘personal dignity’ with lucidity: The Preamble and Article 38 of the Constitution envision social justice as the arch to ensure life to be meaningful and livable with human dignity.

# Air India Statutory Corporation v. United Labour Union AIR 1997 SC 645

Right to life includes protection of the health, and strength of the worker is a minimum requirement to enable a person to live with human dignity.

# Consumer Education and Research Centre v. Union of India, AIR 1995 SC 922

The right to life enshrined in Article 21 cannot be restricted to mere animal existence; it is much more than just physical survival. The right to life includes the right to live with human dignity and all that goes along with it.

# Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746

56. In

# D. K. Basu v. State of W.B., AIR 1997 SC 610

in the context of custodial torture, the Apex Court has observed that torture is a calculated assault on human dignity and whenever human dignity is wounded, civilisation takes a step backward—flag of humanity must on each such occasion fly half-mast. Further, human dignity is a dear value of our Constitution not to be bartered away for mere apprehensions entertained by jail officials.

# Kishor Singh Ravinder Dev v. State of Rajasthan, AIR 1981 SC 625

Treating a human being thereby offending human dignity, imposing avoidable torture, and reducing the man to the level of a beast would certainly be arbitrary and can be questioned under Art. 14.

# Sunil Batra v. Delhi Administration, AIR 1978 SC 1675

# In Perspective:

57. Dignity concerns a person’s physical and psychological integrity—and empowerment. Constitutional recognition accentuates the dynamics of dignity, and statutory frame work reinforces the right, which otherwise remains a pious wish. It is, at best, an exalted ethical value sans enforcement. Indian jurisprudence has, doubtless, recognized ‘dignity’ of a human being—more so of a woman—as a pursuable and enforceable constitutional objective.

58. Confining our discussion to the issue on hand, we may observe that diffuse as the doctrine of dignity is, one of its myriad aspects is disability, another being gender specificity. Concerning disability, the Act, 1995 is the legislative devise to enforce what could have otherwise remained as a penumbral right in the folds of, say, Article 21 of the Constitution.

59. In Kunal Singh (supra), involving a disabled constable, the Apex Court has held that if an employee after acquiring disability is not suitable for the post he was holding, he could be shifted to some other post with the same pay scale and service benefits; if it is not possible to adjust the employee against any post, he will be kept on a supernumerary post until a suitable post is available, or he attains the age of superannuation, whichever is earlier. Added to this, no promotion shall be denied to a person merely on the ground of his disability as is evident from subsection (2) of Section 47. The Court, in this regard, has observed that the view that advances the object of the Act and serves its purpose must be preferred to the one that obstructs the object and paralyses the purpose of the Act.

60. In Bhagwan Dass (supra), the Hon’ble Supreme Court has observed that the officers concerned may have been acting in what they believed to be the best interests of the Board. Still under the old mindset, it would appear to them just not right that the Board should spend good money on someone who was no longer of any use. But they are quite wrong, seen from any angle. From the narrow point of view, it is observed, the officers were dutybound to follow the law, and it was not open to them to allow their bias to defeat the lawful rights of the disabled employee.

61. Pertinent is the observation that, from the larger point of view, the officers failed to realise that the disabled, too, are equal citizens of the country and have as much share in its resources as any other citizen. Denying them their rights would not only be unjust and unfair to them and their families, but would create larger and graver problems for the society at large. What the law permits to them is no charity or largesse but their right as equal citizens of the country.

62. In

# Anil Kumar Mahajan v. Union of India, (2013) 7 SCC 243

the employee is an IAS Officer; he served for 30 years till the order of his compulsory retirement. His compulsory retirement was due to his insanity. In that factual background, the Hon’ble Supreme Court has observed that even if it is presumed that the employee is insane, as held by the enquiry officer, mental illness being one of the disabilities under Section 2(i) of the 1995 Act, it is not open for the authorities, under Section 47, to dispense with, or reduce in rank of, the employee who acquired a disability during his service.

63. Their Lordships have gone on to observe that, if the employee, after acquiring disability, was not suitable for the post he was holding, he should have been shifted to some other post with the same pay scale and service benefits. Further, if it was not possible to adjust him against any post, the employer ought to have kept the employee on a supernumerary post until a suitable post is available or, until the employee attained the age of superannuation whichever was earlier.

# Culmination

64. Building on Anil Kumar Mahajan, we think the last issue to be determined is whether that employee, practically unable to perform any functions or discharge any duties, still required to attend office or work place—ritualistically.

65. In

# Union of India v. P. Balan, An unreported judgment, dt.10.11.2008, in W. P. (C) No.32464 of 2008

a learned Division Bench has held that a person who is found medically unfit to do any job, need not apply for leave. If he is physically disabled from moving around, he need not visit the station where he worked last. No such stipulations are engrafted in Section 47 of the Act. Any insistence to the contrary, holds the Division Bench, echoes the bureaucratic approach that cannot stand scrutiny.

66. Now back to the case: As has been extracted, the medical report is unambiguous; in fact, it reads distressingly. With loss of bowl control and faecal incontinence—and further always to be attended to—the employee has precious little to offer to her employer as her contribution in the workplace. Prone to infections and potential to spread them, the employee poses danger to herself and to others as well. The employer seems to have understood that keeping an employee on the rolls, as if she had been in service, must mean that she should perform the ritual of attending office. We are afraid it is misplaced, if not perverse. We cannot, however, hide our surprise at the vigour with which, the giant of an employer, the Railways, has pursued the matter against a woman who has already been beaten by fate to her wheel chair for life.

67. We do not deny that the employer may have been spurred by a sense of duty, but a generous spirit of accommodation might have been much appreciated. Lest the employer’s insistence on the employee’s physical presence under impossible—and perilous— circumstances should be taken as a display of official hubris. Let us not forget every disabled person is not a Stephen Hawkins to contribute, still.

68. Here is a conflict, as it seems, between the employee’s constitutional right—right to dignity and privacy—and the employer’s right—right to compel an employee to discharge the allotted functions. Need we say, it is the constitutional right that prevails? Nevertheless, we hasten to add, it may be a constitutional canon but needs the facts to justify it. Here, the facts, we think, justify this conclusion.

69. We may end our disposition with a quote that puts the issue in perspective:

“Dignity is as essential to human life as water, food, and oxygen. The stubborn retention of it, even in the face of extreme physical hardship, can hold a woman’s soul in her body long past the point at which the body should have surrendered it.”

# Laura Hillenbrand, Unbroken: A World War II Story of Survival, Resilience, and Redemption (2010, Random House) [Gender changed to contextualize]

# Result:

70. Under these circumstances, we hold that the learned Tribunal has rendered Ext.P10 order in consonance with the principle of law calling for no interference. In the facts and circumstances, we dismiss the Original Petition as devoid of merit. No order on costs.

This matter, in our view, deserves imposition of exemplary costs. But it will eventually result in further loss to the exchequer, which has already spent much money on needless litigation. We refrain from imposing any cost.

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