Right To Decent Burial As Per Religion Under Articles 21 And 25: Calcutta HC issues Guidelines

It is most refreshing, most reassuring and most rejuvenating to see that the Calcutta High Court has just recently on 16 September 2020 in a latest, landmark and laudable judgment titled Vineet Ruia Vs The Principal Secretary, Ministry of Health & Family Welfare, Govt. of West Bengal & Ors. in WPA 5479 of 2020 With I.A. No. CAN/1/2020 (Old No. CAN 4144 of 2020] in exercise of its constitutional writ jurisdiction on its appellate side while asserting categorically and convincingly that the right to a decent funeral can also be traced in Article 25 of the Constitution of India, thus ruled that the immediate family members of Covid-19 victims be permitted to perform the funeral rites of the deceased subject to them following certain precautionary guidelines to eliminate/minimize the risk of them becoming infected by the deadly virus which has caused devastation in the form of loss of countless lives across the world. It is most gladdening to see that the Calcutta High Court was also of the firm view that the right of the family of a Covid-19 victim to perform the last rites before the cremation/burial of the deceased person is a right akin to Fundamental Right within the meaning of Article 21 of the Constitution of India. Who can deny it?

To start with, this latest, learned and laudable judgment by a Division Bench of Calcutta High Court comprising of Chief Justice Thottathil B. Radhakrishnan and Justice Arijit Banerjee sets the ball rolling by first and foremost observing in para 1 that, “In this writ petition styled as a Public Interest Litigation the petitioner has raised four grievances regarding the manner in which the State Government is monitoring the pandemic situation caused by the deadly novel Corona Virus. The four issues are as follows:

i)                 The human remains/dead bodies of persons inflicted with Covid-19 are being disposed of by the administration unceremoniously and in an undignified manner without showing even a semblance of respect to the mortal remains.

ii)              Relatives and friends of persons admitted to hospitals with Covid-19 or persons who have contracted the disease whilst in hospitals having been admitted for some other malady, and who subsequently passed away, are not being permitted to have a last look at or to pay last respect to the mortal remains of the dead person and to perform the last rites.

iii)           There is no proper reporting of Covid-19 cases or Covid-19 deaths.

iv)           District wise lists should be published containing names of all persons infected with Covid-19.”

Needless to say, it is then conceded in para 2 that, “The aforesaid issues are no doubt of vital importance particularly having regard to the havoc-like situation created all over the world including our State, by the sinister novel Corona Virus. Lakhs of people have fallen prey to the deadly Covid-19 and have lost their lives. The situation is indeed grave. Hence, we have heard at length, the petitioner who appeared in person as well as the Learned Advocate General appearing for the State and also the Learned Counsel for the Union of India.”

Be it noted, it is then very rightly pointed by the Bench in para 8 that, “We have carefully considered the submissions made on behalf of the parties. There is no scope for doubt anymore that the right to life enshrined in Article 21 of the Constitution of India includes the right to life with dignity. We agree with the submission of the petitioner that living with dignity includes not only the dignity of a person when he is alive but also the dignity following his death. The right to dignity and fair treatment under Article 21 of the Constitution is not only available to a living person but also to his mortal remains after his demise. Disposal of a human body, whether or not the person dies of Covid-19, whether by cremation or burial, should be done with due respect and solemness. We also agree that the near and dear ones of a deceased person who had contracted Covid-19 should have an opportunity to have a final look at the human remains of the person and to pay their last respect and homage to the departed soul.”

It would be instructive to mention here that para 9 mentions about the case of Pt. Parmanand Katara, Advocate v. Union of India & Anr. (1995) 3 SCC 248 and the key point here is that it was held by the Supreme Court that right to dignity is available not only to a living man but also to his body after his death. Similar is the key point of para 10 which mentions the case of Ramji Singh @ Mujeeb Bhai v. State of U.P. & Ors: 2009 SCC OnLine All 310 = (2009) 5 All LJ 376 decided by a Division Bench of Allahabad High Court. Similar is the case mentioned in para 15 – Marimuthu v. State by The Inspector of Police Pennadam Police Station, Vallar Division, Cuddalore (Criminal Appeal No. 618 of 1995) in its judgment dated 7 August 2002.

What’s more, para 11 then mentions the case of Vikash Chandra @ Guddu Baba v. The Union of India & Ors.: 2008 SCC OnLine Pat 905; (2008) 2 PLJR 127 where the Patna High Court held that it is expected from the Hospital Staff and State Officials that disposal of unclaimed and unidentified dead bodies would be done in accordance with law with utmost respect to the deceased and in case it is verifiable, the last rites should be in accordance with the known faith of the deceased.

Moving on, para 12 mentions of the case of Ashray Adhikar Abhiyan v. Union of India & Ors.: (2002) 2 SCC 27, where the Apex Court reiterated that the dead body of a homeless person who died on the street is entitled to a decent burial according to the religious faith to which he belonged. Similarly, in para 13 the Madras High Court in S. Sethu Raja v. The Chief Secretary [WP(MD) No.1. 3888 of 2007], observed that by our tradition and culture the same human dignity (if not more), with which a living human being is expected to be treated should also be extended to a person who is dead.

While discussing a recent case law titled Pradeep Gandhy v. State of Maharashtra: 2020 SCC OnLine Bom 662, it is then pointed in para 16 about the finding of the Division Bench of the Bombay High Court that, “We find little reason to deprive the dead of the last right, i.e., a decent burial according to his/her religious rites, on the face of there being no evidence, at least at this stage, that Covid-19 infection may spread to living human beings from the cadaver of any suspected/confirmed Covid-19 infected individual.”

No doubt, the key point of para 17 on the case of Common Cause v. Union of India: 2018 SCC OnLine SC 208 is that a Constitution Bench of the Supreme Court observed while adverting to a situation of a dying man who is in a persistent vegetative state that, “The right to die with dignity is an inseparable and inextricable facet of the right to life with dignity. Right to die with dignity is a Fundamental Right and thus an integral part of Article 21 of the Constitution.”

On a different note, it is then underscored in para 14 that traditions and cultural aspects are inherent to the last rites of a person’s dead body. Right to a decent funeral can also be traced in Article 25 of the Constitution of India.

 

Furthermore, it is then also made clear by the Bench in para 18 that, “We are of the view that the right to live a dignified life extends up to the point of death including the dignified procedure of death. We are inclined to interpret the phrase ‘dignified procedure of death’ in an expansive manner so as to include dignified disposal of the human remains of a deceased. We unhesitatingly hold that the mortal person must be treated with care, respect and dignity and have to be disposed of by burial or burning, according to the religion, in so far as the same is ascertainable, that the deceased person practised. It makes no difference if the deceased person was infected with Covid-19. Of course, all requisite safety and precautionary measures must be taken by the persons who carry out the funeral.”

Going ahead, the Bench also points out unambiguously in para 21 that, “The traditional belief in our country is that unless the last rites are performed before the burial/cremation, the soul of the deceased shall not rest in peace. This belief is deep rooted in our country. It also has an emotional and sentimental aspect. Hence, we firmly believe that the family members of a deceased who was infected with Covid-19 should not be deprived of the right to perform the last rites of the deceased, subject to them taking all necessary precautionary measures.”

Not stopping here, it is then further added in para 22 that, “In terms of Article 243G read with the 11th Schedule and Article 243W read with the 12th Schedule of the Constitution of India, public health, sanitation conservancy, burials, burial grounds, cremations, cremation grounds and electric crematoriums are matters that fall within the domain of self-government institutions, be it a Municipality ort a Panchayat. The West Bengal Municipal Act, 1993, which came into being after Part IXA was inserted in the Constitution of India by the Constitution (74th Amendment) Act, 1992 with effect from 01.06.1993, contains provisions regarding restraints of infection (Chapter XXII), vital statistics including registration of births and deaths (Chapter XXIII) and disposal of dead (Chapter XXIV). Section 359 of the 1993 Act empowers the Chairman of a Municipality, with the previous approval of the Board of Councillors, in case of an outbreak of dangerous or epidemic disease, to issue public notice giving such directions to be observed by the public or by any class or section of the public, as he thinks necessary, to prevent the outbreak or spread of the disease. In a case of emergency and where immediate measure is necessary, the Chairman may take such action even without the approval of the Board of Councillors and then report such action to the Board of Councillors. Any person committing a breach of any direction given under the said Section shall deem to have committed an offence under Section 188 of the Indian Penal Code. Section 360 of the said Act empowers the Chairman of a Municipality, where any person dies from any dangerous disease, to require any person having charge of the corpse to carry the same to mortuary for being disposed of in accordance with law or prohibit the removal of the corpse from the place where death occurred, except for the purpose of being burnt or buried or being carried to a mortuary. There are similar provisions in the statutes like Kolkata Municipal Corporation Act, 1980 whereby and whereunder the Kolkata and other Municipal Corporations were constituted respectively. In so far as the KMC Act is concerned, the provisions are to be found in Chapter XXVII (vital statistics), XXVIII (disposal of the dead) and XXIX (restraint of infection) of the Act.”

More significantly, it is then stipulated in para 23 that, “We have referred to the aforesaid provisions of law only to show that the legislature has imposed duties on the local self-government institutions to maintain hygiene in the public domain and has empowered such institutions to take appropriate measures to combat the menace of an epidemic or deadly disease. However, these powers must be exercised by the donees of such powers responsibly and by ensuring that the rights of the citizen which are recognized by law, are not jeopardized or curtailed unnecessarily. We are of the firm view that the right of the family of a Covid-19 victim to perform the last rites before the cremation/burial of the deceased person is a right akin to Fundamental Right within the meaning of Article 21 of the Constitution of India. While exercising their power to impose restrictions on citizens in their way of life in the wake of outbreak of an endemic like Covid-19, a fine balance must be struck by the State and the local self-government institutions so that the aforesaid right of a citizen to perform the obsequies of his near and dear ones does not stand abridged or abrogated excepting for very compelling reasons. Having given our anxious consideration to the issue in hand, we have come to the conclusion that the immediate family members of Covid-19 victims be permitted to perform the funeral rites of the deceased subject to them following certain precautionary guidelines to eliminate/minimize the risk of them becoming infected by the deadly virus which has caused devastation in the form of loss of countless lives across the world.”

Most significantly and most remarkably, it is then held elegantly and effectively in para 24 that, “We have considered the guidelines on dead body management in the context of Covid-19 issued on 15 March, 2020 by the Ministry of Health and Family Welfare, Government of India. In addition to the procedure laid down in the State Government Notification dated 6 June, 2020, which we have referred to hereinbefore, we lay down the following guidelines:

i)                 When post mortem of the dead body is not required, the dead body shall be handed over to the immediate next of kin of the deceased i.e. the parents/surviving spouse/children, after completion of hospital formalities. The body should be secured in a body bag, the face end of which should be preferably transparent and the exterior of which will be appropriately sanitized/decontaminated so as to eliminate/minimize the risk to the people transporting the dead body.

ii)              The people handling the dead body shall take standard precautions, e.g., surgical mask, gloves, etc. If available and possible, PPE should be used.

iii)           The vehicle carrying the dead body to the crematorium/burial ground will be suitably decontaminated.

iv)           The staff of the crematorium/burial ground should be sensitized that Covid-19 does not pose additional risk. They will practice standard precautions.

v)              The face end of the body bag may be unzipped by the staff at the crematorium/burial ground to allow the relatives to see the body for one last time. At this time, religious rituals, such as reading from religious scripts, sprinkling holy water, offering grains and such other last rites that do not require touching of the body should be allowed.

vi)           After the cremation/burial the family members and the staff of the crematorium/burial ground should appropriately sanitize themselves.

vii)        As a social distancing measure, large gathering at the crematorium/burial ground should be avoided.

viii)     The persons handling the dead body shall go directly from the hospitals to the crematorium/burial ground, as the case may be, and not to anywhere else including the home of the deceased where he/she last resided.

ix)           In case the body of a Covid-19 infected deceased is unclaimed, the same shall be cremated/buried as the case may be with due dignity, at State expense.

Needless to say, these guidelines are not to be taken as exhaustive and the State Government or local self-government institutions may and should prescribe additional reasonable measures as they may be advised by medical/clinical experts for the safety and protection of the health of the people who deal with the mortal remains of a Covid-19 victim.”

Finally, it is then held in the last relevant para 25 that, “As regards the third and fourth issues, i.e., proper reporting of Covid-19 cases or Covid-19 deaths and publication of names of Covid-19 infected persons district wise, we are satisfied that the State has taken adequate measures as recorded above. In our opinion no further direction need be given by us in that regard for the time being.”

Not even an iota of doubt can ever be left in the mind of any person who reads this latest, landmark and extremely laudable ruling by a Division Bench of the Calcutta High Court which dwells elaborately on the right to decent burial as per religion of the dying person as is enshrined also in Article 21 and Article 25 of the Constitution. It lays down guidelines also  as discussed above which must be followed in letter and spirit! There can be no denying or disputing it!

Sanjeev Sirohi