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."34
34 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.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR.JUSTICE P.R.RAMACHANDRA MENON
&
MR. JUSTICE DAMA SESHADRI NAIDU
3RD DAY OF OCTOBER 2016
OP (CAT).No. 182 of 2016 (Z)
UNION OF INDIA,
Vs
FANCY BABU,
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 calamity-
stricken--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 another1 and Bhagwan Dass and another v.
1 (2003) 4 SCC 524
Punjab State Electricity Board2, 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
2 (2008) 1 SCC 579
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 5x1 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."3
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
3 Pp 9-10, Harvard University Press, 1991
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)4.
30. Thus, International Human Rights Instruments have,
without exception, stressed on certain inalienable rights and
freedoms: the Right to Life, Liberty, Security--and Personal
4 26 Am. U. Int'l L. Rev. 1377 2010-2011
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.5
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
5 From `Human Dignity and Judicial Interpretation of Human Rights.' European Journal of International
Law; http://ejil.oxfordjournals.org/content /19/4/655.full
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 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
6 Ibid
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
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'.
7 Ibid
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
Affairs8 the South African Supreme Court drew upon Section 10.
8 [2000] 5 Law Reports of the Commonwealth 147.
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. UK9 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.
9 2 EHRR 1, at para. 33
40. Since the days of Tyrer, the ECHR has applied dignity as
a judicially enforceable human right in various contexts: fair
hearing10, the right not to be punished in the absence of a legal
prohibition11, the prohibition of torture12, and the right to private
life13.
41. In Bland v. Airedale N.H.S. Trust14, 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
10 Bock v. Germany, 12 EHRR (1990) 247, at para. 48.
11 SW v. UK; CR v. UK, 21 EHRR (1995) 363, at para. 44.
12 Ribitsch v. Austria, 21 EHRR (1995) 573, at para. 38
13 Goodwin v. United Kingdom, 35 EHRR (2002) 447, at paras 90 - 91.
14 [1993] 1 All ER 821
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
Limbuela15, 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
15 [2005] UKHL 66 (HL)
Supreme Court in Trop v. Dulles16 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
Casey17, 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. Texas18 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
16 356 U.S. 86 (1958)
17 505 US 833 (1992)
18 539 US 558, at 574 (2003)
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. Canada19 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)20, 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
19 [1991] 2 SCR 779.
20 [1999] 1 SCR 497
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)21, 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
21 [1997] 3 S.C.R. 624
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 France22,
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 Perspective23, 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.24
22 Communication No 854/1999, U.N. Doc. CCPR/C/75/D/854/1999 (2002)
23 26 Am. U. Int'l L. Rev. 1377 2010-2011
24 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,25 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
25 (1994) 3 SCC 569
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 dignity26.
26 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 dignity27. 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 it28.
56. In D. K. Basu v. State of W.B.29, 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 officials30.. Treating a human
being thereby offending human dignity, imposing avoidable
torture, and reducing the man to the level of a beast would
27 Consumer Education and Research Centre v. Union of India, AIR 1995 SC 922
28 Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746
29 AIR 1997 SC 610
30 Kishor Singh Ravinder Dev v. State of Rajasthan, AIR 1981 SC 625
certainly be arbitrary and can be questioned under Art. 14.31
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.
31Sunil Batra v. Delhi Administration, AIR 1978 SC 1675
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 sub-
section (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 duty-
bound 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,32 the
32 (2013) 7 SCC 243
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. Balan33 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
33 An unreported judgment, dt.10.11.2008, in W. P. (C) No.32464 of 2008
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."34
34 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.
P.R. RAMACHANDRA MENON,
JUDGE.
DAMA SESHADRI NAIDU,
JUDGE.
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