Justice K.S.Puttaswamy(Retd) vs Union Of India on 26 September, 2018
the end of law. This may not be accepted and was criticised by the protagonist of hedonist
utilitarianism, notably Bentham. This school of thought laid emphasis on the welfare of the society
rather than an individual by propounding the principle of maximum of happiness to most of the
people. Fortunately, in the instant case, there is no such dichotomy between the individual
freedom/liberty we are discussing, as against public good. On the contrary, granting the right to
choose gender leads to public good. The second tendency of the Kantian criterion of justice was
found in reinterpreting freedom in terms not merely of absence of restraint but in terms of
attainment of individual perfection. It is this latter trend with which we are concerned in the present
case and this holds good even today. As pointed out above, after the Second World War, in the form
of the UN Charter and thereafter there is more emphasis on the attainment of individual perfection.
In that united sense at least there is a revival of the natural law theory of justice. Blackstone, in the
opening pages in his Vattelian Fashion said that the principal aim of society is to protect individuals
in the enjoyment of those absolute rights which were vested in them by the immutable laws of
nature.
97) Thus, right of choice and right of self determination were accepted as facets of human dignity. It
was also emphasised that in certain cases, like the case at hand (that of transgenders), recognition of
this aspect of human dignity would yield happiness to the individuals and, at the same time, also be
in public good.
98) Advancement in conceptualising the doctrine of human dignity took place in the case of
Shabnam v. Union of India & Ors. 35 wherein this Court has gone to the extent of protecting certain
rights of death convicts by holding that they cannot be executed till they exhaust all available
constitutional and statutory remedies. In the process, the Court held as under:
15. This right to human dignity has many elements. First and foremost, human
dignity is the dignity of each human being 'as a human being'. Another element,
which needs to be highlighted, in the context of the present case, is that human
dignity is infringed if a person's life, physical or mental welfare is harmed. It is in this
sense torture, 35 (2015) 6 SCC 702 humiliation, forced labour, etc. all infringe on
human dignity.
It is in this context many rights of the accused derive from his dignity as a human
being. These may include the presumption that every person is innocent until proven
guilty; the right of the accused to a fair trial as well as speedy trial; right of legal aid,
all part of human dignity. Even after conviction, when a person is spending prison
life, allowing humane conditions in jail is part of human dignity. Prisons reforms or
Jail reforms measures to make convicts a reformed person so that they are able to
lead normal life and assimilate in the society, after serving the jail term, are
motivated by human dignity jurisprudence.
16. In fact, this principle of human dignity has been used frequently by Courts in the context of
considering the death penalty itself. Way back in the year 1972, the United States Supreme Court
kept in mind this aspect in the case of Furman v. Georgia 408 US 238 (1972). The Court, speaking
Indian Kanoon - http://indiankanoon.org/doc/127517806/
92
اختر الفقرة المستهدفة3
الاتصال بفقرة
Connect to an entity
Disable highlights
أضف إلى جدول المحتويات