The axiomatic significance that certitude and codification of law hold for the protection of human dignity has never been so acutely experienced in recent history as in the past couple of months.
Rule of law and the right to dignity are but two sides of the same coin and certainty and accountability two indispensable pillars of rule of law. The blow to these two pillars jolted the right to dignity in ways that must shake us all.
Indeed, this unparalleled crisis has brought forth our peoples’ spirit of duty and service like never before. Undoubtedly, our country has so far remained relatively unscathed by this wildfire, considering the density of our population. At the same time, it most certainly cannot be denied that, despite having stayed afloat in these stormy times, we have much to reflect.
The debate whether a pandemic ought to have been foreseen if not anticipated, shall rage on for a long time. Nonetheless, having been taken off-guard, in its immediate perception of the threat to lives, the administration ignored the right to dignity of individuals for whom life itself is a daily struggle for survival.
In its fervent call to test én masse for the disease in order to "generate data", the medical world, driving policy by default, wholly disregarded the inherently intrusive character of any mandatory procedure. At the same time, in our self-seeking hysterical impulse to quarantine healthy "suspects" who may have had exposure, we overlooked the individual's right to a dignified and hygienic facility.
Amidst the unpreparedness of the medico-political world, followed by a swift lockdown, the poignant suffering of the migrant workers and the homeless was an avoidable tragedy. Despite doctors and health workers performing immeasurable service, regrettably there were deaths due to heart attacks and other causes just because the hospitals refused to attend to the patients out of COVID-fear.
Many such added tragedies could well have been avoided had there been an obligatory legal regime in place compelling states to ensure the workers’ welfare; a mandatory protocol for hospitals, industries and the entire citizenry to follow; and had the citizens been aware of their "lockdown rights". Lord Atkin's grim warning in his minority judgement in Liversidge, that “amidst the clash of arms the laws are not silent”, shall haunt us in the times to come.
Woefully, despite its lofty status as a fundamental guarantee by our Constitution, the right to dignity fell silent once the codified law was found vacuous. Fear-driven abandonment by states of a whole class of their own residents, albeit migratory, forsaking them to their own fates as they lumbered hundreds of miles home, was a frontal attack on human dignity more than abdication of duty.
Indeed, the very fostering of an atmosphere, whether by the State or the media, where individuals are viewed as potential “infection carriers” and “social distancing violators”, rather than as helpless victims in need of support by the law, annihilates every modicum of human dignity that our founding fathers held so dear.
The ‘shramik’ who had dreamed of making a dignified living in our cities, was sent packing in an utterly undignified and hapless fashion. Equally, the glorification by a section of the media of the omnipotent “Lathi” of our constabulary raining hell on “lockdown breakers”, has left a lasting scar on our sense of dignity.
If ever there was an occasion for our Supreme Court, as the constitutionally ordained sentinel of human rights, to fill in this silence of the law and to express the immense power of its writ, it was now, when millions began trudging voicelessly and many more slept in hunger. If ever there has been a need for the Supreme Court to employ the creative potential of Article 142 as evolved in Vishakha, it is now when the silence of codified law challenges the individual’s right to dignity in countless ways.
The protection of fundamental rights is without a doubt the domain of the Court, and its recourse under Article 32 is aptly described as the “soul of the Constitution”. At the same time, suo motu cognizance and purging of any ‘political’ face from a motivated yet worthy cause brought before the Court, is the fitting answer to meet any protestation to the sanctity of public interest proceedings.
In the profound words of the Supreme Court in Puttaswamy,
“So fundamental is dignity that it permeates the core of the rights guaranteed to the individual by Part III [of the Constitution]. Dignity is the core which unites the fundamental rights”.
Thus, even in a desperate bid to save lives of the maximum number, be it for the greater common good, unmindful disregard of individual dignity can never be an option for the State in a democracy. As President Barak of the Supreme Court of Israel has famously observed:
"This is the destiny of a democracy — it does not see all means as acceptable.... The rule of law and the liberty [and dignity] of an individual constitute important components in its understanding of security [of life]."
Yet, in this hour of deep crisis, in the absence of ‘codified’ guidelines, we saw this sacrosanct right to dignity of the individual “becoming a teasing illusion and a promise of unreality”, to borrow the words of Justice PN Bhagwati. Adapting the all too famous poetic lament: Each man’s indignity diminishes us all, for it is the promise of the Charter that must stand tall; so ask not for whom tolls the bell, it tolls for democracy itself.
The author is a Senior Advocate.