Strip Search Strips Constitution of a Nation


Strip search is properly defined as ... the removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person’s private areas, namely genitals, buttocks, breasts (in the case of a female), or undergarments. (R. v. Golden, [2001] 3 SCR 679, 2001 SCC 83 ) Supreme Court oF Canada .

 It is arguably one of the most intrusive forms of searches performed by police officers in course of criminal procedures. It utterly disregards the fundamental right to life of an individual . It is a direct assault on the dignity of an individual  .

 The Universal Declaration of Human Rights provides the preliminary work out for protecting and development of right to life with human dignity in the various constitutional laws of various countries in the world. Every person has inalienable right to live withdignified life without discrimination. They are entitled to claim equal respect from the state as well as from other persons. It is one of primary duties of each state to protect fundamental rights to the human dignity. .In Smt. Gain Kaurv. The State of Punjab, The Supreme Court of India has not only reiteratedthat right to life includes right to dignity but also it has held that this expression means the existence of such a right up the end of natural life.

 Dignity of human beings is construed as respect of human beings, not depends on any particular additional status. Right to dignity incorporation, has become inseparable part of right to life.  The  Foundation of  dignity within the meaning and ambit of right to life assures self respect and recognition of individual in all transactions, in all relations, at all levels and everywhere. Dignity is one of the civil rights but it is now to be construed as defendant on the enjoyment of several economic, social and cultural rights. For instance, dignity protects self-respect of the individual. This in turn is dependent on food, water, shelter, health and clothing that are again dependent on right to work, just conditions of work, equal pay for equal work, etc. Therefore, right to dignity and its realization is to be considered from different perspectives.

Human dignity is an inhetent  part of life .In fact , it has acquired the status of a binding legal norm, being frequently referred to as the cornerstone of the edifice of human rights. The duty to respect the dignity of every individual is solemnly stated by numerous international declarations and covenants, as well as by national constitutions and charters of rights. Even in domestic legal settings, in which dignity does not appear in statutes, the courts have increasingly referred to this principle when resolving disputes (particularly significant is the French experience of the last two decades; but also striking is the multiplication of references to dignity in the recent case law of the US Supreme Court). In short, dignity has undergone an impressive process of "juridification," having gradually lost the role of a purely moral precept and acquired that of a binding legal norm.

The concept of respect to private life is definitely wider in scope and goes beyond the mere right to privacy. The European commission  in  the  application brought before  it  in Bruggemann and  Scheuten  v Federal Republic of Germany  stated that; “The  right  to  respect  for  private  life  is  of  a  scope  as  to  secure  to  the individual  a  sphere  within  which  he  can  freely  pursue  the  development and  fulfilment  of  his  personality.  To  this  effect,  he  must  also  have  the possibility of establishing relationships of various kinds, including sexual, with other persons. In principle, therefore,  when  the state  set  up  rules  for the  behaviour  of  the  individual  within  this  sphere,  it  interferes  with  the respect for private life  and  such  interference  must  be  justified  in the light of paragraph (2) of Article 8”. The court further stated in Niemietz v Germany ( ECHR 16 DEC 1992 )  that; “The  court  does  not  consider  it  possible  or  necessary  to  attempt  an exhaustive definition of the  notion  of ‘private life’. However, it would be too  restrictive  to  limit  the  notion  to  an  ‘inner  circle’  in  which  the individual  may  live  his  own  personal  life  as  he  chooses and  to exclude therefrom  entirely the  outside  world not  encompassed  within that  circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationship with other human beings. 

Dignity is violated if the state denies the freedom of the individual to make fundamental choices affecting his or her personal sphere. Particularly relevant from this viewpoint are the decisions concerning the human body and the domain of sexuality. The US Supreme Court case law on constitutional privacy offers several examples of such a use of the notion of dignity, Lawrence v. Texas [539 U.S. 558 (2003)], which invalidated state sodomy laws, being one of the most famous.

 The European Court of Human Rights [EuCtHR, 29-4-2002, App. N. 2346/02, Perry v. UK] and the Supreme Court of Canada [Carter v. Canada, 2015 SCC 5] have also referred to the principle of dignity in resolving disputes concerning the right to die. In a second category, the duty to respect dignity is also infringed in cases involving the violation of the bodily and psychological integrity of the person. The prohibition of torture and other degrading treatments flows directly from this commitment. In one controversial case, the German Constitutional Tribunal [BVerfGE 109, 279 (2004)] struck down the Aviation Security Act, insofar as the statute authorized the shooting down of a hijacked airplane in a 9/11 situation. Such an intentional act of shooting, argued the Court, would conflict with the fundamental right to life and the dignity of the innocent passengers of the plane (see, in a similar line of reasoning, the Ontario case of Jane Doe v. Metropolitan Toronto Police [(1998), 39 O.R. (3rd) 487, 160 D.L.R. (4th) 697 (Gen. Div.)], criticizing the adoption of an end/means analysis, which led the police to abstain from communicating to the women living in a certain area the risks posed by a serial rapist, with the hope of arresting him 'on the scene' of the crime; or the Israeli Supreme Court ruling on targeted assassinations of unlawful combatants in the Occupied Territories [Public Committee against Torture in Israel v. Government of Israel, HCJ 769/02 (Sup. Ct. sitting as High Court of Justice, 2005)]). Furthermore, the respect of the intrinsic worth of the individual is denied in cases of discrimination: here, the fundamental principles of dignity and equality tend to converge, leading to an important phenomenon of cross-fertilization, of which the Canadian experience is particularly illustrative. Thirdly, human dignity requires the respect of an intimate sphere, which must be shielded from unwarranted government intrusions. This has been the theoretical basis for the recognition by German courts of a right to "informational self-determination," which assumes an enormous importance in our age of 'liquid surveillance.' Noteworthy to mention that the European Charter of Fundamental Rights states: "Human dignity is inviolable. It must be respected and protected." The duty to protect is implied by a conception of dignity as a positive right, which would require the government not only to abstain from any interference with it ("respect"), but also to adopt affirmative measures aimed at preventing violations of dignity arising from the action of third parties ("protect"). The logical consequence of this model is that the positive commitment to protect dignity may lead, in a wide range of situations, to the restriction of the freedoms of others (particularly freedom of speech, as exemplified by the 2104 decision of the French Council of State [CE, ord. 9-1-2014, Société Les Productions de la Plume et M. D. , n. 374508], banning, in the very name of dignity, a show created by the controversial artist Dieudonné M'Bala M'Bala). 

The first concerns the subjective scope of dignity. If dignity is to be considered a paramount objective value, and not only a right, it should be protected regardless of the existence of a rights-bearer. Consistently with this, the dignity principle has played a role in cases involving the violation of group rights, and also with respect to the protection of the unborn and the deceased. Particularly relevant, from this point of view, is the 2011 ECJ decision in Brüstle v. Greenpeace (ECJ, Grand Chamber, 18-10-2011, C-34/10), which upheld the ban on the patenting of neural precursor cells derived from embryonic stem cells, on the basis that such patents would violate the principle of respect for human dignity, as it applied to the embryo. If one takes into account the possible consequences of this regulatory model in the area of abortion, one could easily understand the skepticism expressed by some scholars with regard to a notion that is frequently cast in term of absolutes.

The second point relates to the possible conflict between dignity and autonomy. Once it is assumed that the state has a positive obligation to protect dignity, situations may arise in which the exercise of personal freedom may clash with the "objective" value of human dignity. In such situations, whose "dignity" should prevail? The dignity of the individual, free to make his or her own value-choices, or dignity as defined by an external decision-maker? This issue is illustrated by the famous "dwarf-tossing" case. The French Council of State (CE, Ass., 27-10-1995, Ville d'Aix-en-Provence) outlawed the spectacle, holding that dwarf-tossing was an attraction that affronted human dignity, and that respect for human dignity was an aspect of public order. The Council also held that the principle of freedom of employment was no impediment to the prohibition of an activity that violated public order. Manuel Wackenheim, who had been employed in such a spectacle, lodged a complaint before the ECHR, and, as a last resort, before the UN's Human Rights and Anti-Discrimination Committee. He argued that the ban had "an adverse effect on his life" and "represented an affront to his dignity," adding that his job did not infringe human dignity, "since dignity consists in having a job." Both courts dismissed the complaint. Reading these rulings critically (one should also mention the 2004 ECJ Omega decision on laser-shows, [ECJ, 14-10-2004, C-36/02], as well as the German decisions on peep shows [ex plurimis BVerwG, 15-12-1981, NJW, 1982, 664]), one gets the impression that what is really at stake is not the dignity of the individual, but the dignity of the species, or "human" dignity. However, one could seriously raise the question whether it is actually possible, in a pluralistic and multicultural society, to settle on a fixed "image of man" and impose this image on anybody, even on the right-holder. Is it possible, in other words, to set the boundaries of autonomy on the basis of the concept of dignity? Or is the formula "dignitarian limits of autonomy" an oxymoron? The solution for the comparative lawyer would be to test such questions empirically by looking at jurisdictions characterized by different institutional settings and value-choices. If one takes into account the US experience, for instance, it is easy to find not only a strong scholarly opposition to such a "communitarian" vision of dignity, but also parallel cases decided in the opposite way. For example, in World Fair Freaks v. Hodges [267 So.2d 817 (Fla. 1972)], the Supreme Court of Florida held that the statutory ban imposed by Florida on a spectacle not too different from the French dwarf-tossing case was unconstitutional as a violation of property, in the form of the equal right to earn a livelihood and to pursue a lawful occupation. This is consistent with a conception of dignity that is almost exclusively based on the logic of negative freedoms.

The right to life denotes the significance of human existence for this reason. It is widely called the "highest fundamental rights" (Indian Journal of International Law Vol. 51, No. 03 , July/ Sept. 2011, P. 408)Everyone has the right to life, liberty and security of person. The concept of life is not possible to define in specific way or in a single word. It is true that life can be defined scientifically, theoretically or even philosophically. It is also said that law has its inherent jurisdiction over all these aspects of life.

According to the Oxford Dictionary ‘Life’ is a condition that distinguishes animals and plants from inorganic matter, including the capacity for response, growth, reproduction, functional activity, and continual change preceding death.

Every society has different norms to protect the human life and dignity of individual. 

Now coming to the matter searches of a person, searches have varying degrees of intrusiveness, which often make them difficult procedures. An operational definition of what a strip search is can be found in the legal case of The Supreme Court of Canada vs. Golden. For the purposes of this case, the Crown sought to define a strip search as, “The removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person’s private areas, namely genitals, buttocks, breasts (in the case of a female), or undergarments." (Golden. V. R, 2001). This definition, although very explanatory as far as the act of a strip search, fails to define circumstances which do or do not warrant a strip search to take place. Due to the innate nature of strip searches the issue lies not with the definition of the act itself but instead within the reasoning and decision to perform a strip search. The Canadian Charter of Rights and Freedoms, is the backbone of the Canadian  criminal procedure rights, and is what one can look to in determining the validity of conduction a strip search. The Canadian Charter of Rights and Freedoms does not seek to empower the Canadian government but rather it seeks to protect individuals against unreasonable search and seizure (H. Ramadan, Crim. 3302 lecture, September 23, 2010). Within the Charter, section 8 clearly defines this stating, “Everyone has the right to be secure against unreasonable search or seizure" (Canadian Charter of Rights and Freedoms [CCRF], 1982). With this in consideration, strip searches bring about the issue of determining which situations warrant a strip search and within what manor a strip search should be conducted..(. TO BE CONTINUED 

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1980 Dr. Gautam Ghosh.