Aren’t Dead People Entitled To A Passable Funeral?

Author: Jigyasa Fonia Student, National Law university, Odisha Editor: Muskaan Vijay Student, National Law University, Odisha

INTRODUCTION

The pervasiveness of the Corona Virus pandemic all over the world is poignant. A humongous number of people have tested positive of COVID-19 and thousands of people have lost their lives owing to this contagious disease. As the death toll ascends, a new facet was perceived as grieving in a pandemic. Every religion has its way of performing funeral rites like Hindus prefer funeral pyres on the Ganges river while Muslims washes the body before burying it. Funeral rites in 2020 are very different compared to the ones that used to exist. In the initial times of lockdown, when the pervasiveness of this COVID-19 was ascending to a greater extent lots of problem were faced by families for the cremation of their dead member. People who used to live near the crematorium would protest the cremation of people who dies because of COVID-19 they had this belief that the coronavirus might spread through the smoke that comes out of the pyre. Many news surfaced online where bodies of people, who died of COVID-19, were dumped into well or to some secluded areas rather than disposing of the body in the burial ground.

Our Indian Constitution guarantees Fundamental Rights to an individual throughout his lifetime. Like in India, Article 21[1] of the Indian Constitution is regarding ‘Right to life and Personal Liberty’ which implies that ‘No person shall be deprived of his life and personal liberty except according to a procedure established by law.’ Though, the elucidation of the word ‘person’ is not stated clearly anywhere so the question here arises is that if a person who is pronounced dead will be considered as a ‘person’ under the legal regime.

Salmond perceived that a human’s personality begins with their birth and ends on their death. So, a person who is dead cannot be considered as a person under the law. Nevertheless, he also mentioned that the deceased people still have rights in a general sense, that includes the body, estate and repute. From ancient times, the belief of treating corpses with proper respect and letting them rest without disturbing or pestering them has been held and this is also supported by the Indian law through statutes. Section 297[2] of The Indian Penal Code is regarding the trespassing on places where funeral rites are performed or where depositaries of the dead remain, with the purpose to hurt feelings or dignity of the person, is counted to be as an offence.

LEGAL PROVISIONS AVAILABLE FOR THE DEAD PEOPLE

The apex court in Parmanand Katara, Advocate v. Union of India & Anr.[3] perceived that right to dignity and fair treatment under Article 21 is available to the body of the dead person. This right is available to living beings and also to the body of an individual after death. In Ramji Singh v. State of U.P, the Allahabad High Court also pronounced that right to live with dignity should broaden its application area and should be extended to the deceased person whose body must be treated with respect. So, the word ‘person’ does include a deceased but in a bounded sense and it is the duty of the state to guard these rights and corroborate a dignified funeral.

The rights guaranteed to the dead person in the Indian laws are-

  1. Right to a Decent Funeral

The law tries to ensure a decent cremation of the deceased as per their customs and religious beliefs. This was supported by the apex court in Ashray Adhikar Abhiyan v Union of India, where the major issue was regarding the responsibility of the state towards the homeless people who died on the road. In 2013, a PIL was filed which was regarding the bodies being dumped in public places and rivers. The apex court then gave instructions for disposing of the dead bodies in a dignified and decent manner. In Vikash Chandra v Union of India, the Bihar High Court decided that the unclaimed bodies should be disposed of by the hospital staff and government officials in accordance with the law. The funeral rites should be performed according to the religion of the dead person if it’s identifiable.

The next major concern that arises is the disposal of dead bodies in times of pandemics, wars and natural disasters, where a humongous number of dead bodies which cannot be identified keeps piling up in large number. For disposal of the dead bodies, mass cremations are promoted as well as ensured. The right to decent burial is essential to a person’s dignity and during such times, the government should ensure the decent burial of the deceased but in accordance with the National Disaster Management Guidelines.

But still, during this pandemic lots of problems came into light which was associated with the disposal of dead bodies of people dying because of COVID-19. The Madras High Court took suo-moto cognizance of the situation and mentioned that citizenries must follow the guidelines issued by the ministry and abstain from taking law in their own hands[4]. Due to this pandemic, the Ministry of Health and Family Welfare released certain guidelines on how to manage the dead bodies while taking precautions like social distancing and disinfestation. No large gatherings are allowed at crematoriums and some rituals are allowed which does not require any contact with the dead body.

  1. Right to Die with Dignity

If an individual is not presented with a satisfactory cremation then obviously here his right to a decent funeral is violated and consequently his right to die with dignity is violated too. In Common cause v. Union of India[5], which was related to the legal validity of euthanasia, the apex court acknowledged death with dignity as a fundamental right under the ambit of Article 21 of the Indian Constitution. The court also mentioned that the right to live with dignity and the right to die with dignity is nothing but two intertwine notions which are indivisible. The right to have a dignified life extends till death, counting the ‘dignified procedure of death’. Through ‘dignified procedure of death’, it can be deduced that it will also comprise the dignified and passable funeral. A dignified funeral means that the body of the dead person should be buried with respect at the crematorium.

CONCLUSION

As the number of deaths is increasing day by day due to COVID-19, it is very imperative to keep in mind that the dead bodies are subjected to a proper funeral. Awareness regarding the coronavirus should be there and citizens must follow the guidelines by the Union Health Ministry and co-operate rather than making spreading fake news. In this pandemic situation we all should stand united rather than causing ruckus in the country. A decent funeral is a dead’s person right and no can take that right away.

[1] Article 21, The Constitution of India, 1950

[2] Section 297, The Indian Penal Code, 1860

[3] Parmanand Katara, Advocate v. Union of India & Anr., (1995) 3 S.C.C. 248

[4] Meera Emmanuel, ‘Article 21 includes right to decent burial”, Madras HC registers suo motu PIL after mob obstructs burial of Doctor who died from COVID-19’, accessed 10 August 2020 <https://www.barandbench.com/news/litigation/article-21-includes-right-to-decent-burial-madras-hc-registers-suo-motu-pil-after-mob-obstructs-burial-of-doctor-who-died-from-covid-19>

[5] Common Cause (a regd. Society) vs. U.O.I., (2018) 5 S.C.C. 1

2 views