Author:- Anu Priya
“Death must be so beautiful. To lie in the soft brown earth, with the grasses waving above one’s head, and listen to silence. To have no yesterday, and no tomorrow. To forget time, to forget life, to be at peace.” -By Oscar Wilde
Life and death are two entangled truths of existence. One who takes birth has to die. This can be bitter truth for one and the sweetest reality of life for the other. It depends on the individual approach. Fear of death and struggle for life, this is what people do. During the covid pandemic, this struggle is an undeniable reality. Losing your family members, friends, relatives or any close one is the saddest part of the ongoing scenario. One might think this is it, what more wrong can happen other than the death of loved ones.
Floating dead bodies, denial of last religious rites, the one whom you love suddenly vanish like a ghost from your life without last goodbye, its fearful to suppose if you die your family won’t allow seeing your dead body[1], taking undue advantage of the family of a dead person in the name of religious rites are another inhuman treatment more like exploitation. Think of those destitute family who won’t have money for the proper disposal of their mother, brother, sister or kids[2]. No place left for their burial, no woods for cremation.
Removing identity and dumping more than 2000 dead body in the holy river Ganga is a matter of urgent action[3]. Floating half burnt and decomposed bodies, some without even stitching the post-mortem operation openings were thrown into River Ganges is a horrific situation for everyone[4]. How those sole will rest in peace. Mukti and Moksha are after death concept among Hindu culture they follow ‘Garud Puran’, another culture has their other religious rites. It forms the part of the right to religion which calls for protection. Seeing all these situations our inner conscience ask do they have any right against this inhumanity, does a dead person possess any legal protection.
The Constitutional rights and laws enacted in response to the Covid epidemic
A dead body is the physical remains of an expired human being before complete decomposition[5]. Death in IPC refers to the death of a human[6].In the case, Munn v. Iliinois[7], Field, J. explains the right to life i.e.,
“By the term, ‘life’ as here used something more is meant than mere animal existence.
Most legal principles suggest dead person do not consist rights[8]. Numerous legal institutions, on the other hand, are working to defend the rights of the deceased. Most testamentary distributions, burial requests, and organ donation designations are held to be valid even if they contradict the preferences of the living[9]. In Indian Constitution, the fundamental rights in Article 21 provide a broader concept of life and personal liberty which also comprise the right to die with dignity and the right to a decent burial[10]. The apex court quoted that
“If any act or omission which damages or injures or interferes with the use of any limb or faculty of a person, either permanently or temporarily, would be within tile inhibition of Article 21”[11]
Whereas Article 25 of the Indian Constitution provides the right to religion which consist right to perform funeral rites of the deceased[12].
The Indian Constitution under article 21 and 25 protects the rights of the deceased in such a way that it does not restrict the right to human dignity and fair treatment only to the living human being but extends it even after death[13]. The word life in Article 21, the life of dignity is not merely an animal life[14]. In the case of Kharak Singh v. State of UP[15], the apex court repeatedly stated that-
“The provision equally prohibits the mutilation of the body by the amputation of an arm or leg, or the putting out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world”[16]
A dead body deserves respect, in the same way, if he had been alive, subject to his tradition, culture and the religion which he professed[17]. Society should not be permitted to show any disgrace to the deceased. Further, it was elaborated that every individual with the special reference to homeless people has a right to a decent burial according to their religious faith identified before their death[18]. A division bench of the supreme court recently noted that the circular issued by the civic aligned with the law and the corporation had all authority and power to designate burial grounds and cemeteries.[19] The VII schedule grants power to the state to make laws regarding public health care, burial and cremation grounds in the purview o this power several states passed laws and regulations. Some of them are The West Bengal Epidemic Disease, COVID 19 Regulations, 2020, The Maharashtra COVID-19 2020, The Delhi Epidemic Diseases, COVID-19 Regulations, 2020, the Odisha COVID-19 Regulations, 2020, the Uttar Pradesh Epidemic Diseases, COVID-19 Regulations, 2020, the Bihar Epidemic Diseases, COVID-19 Regulations, 2020, the Gujarat Epidemic Diseases, COVID- 19 Regulations, 2020, etc.[20] Irrespective of these Act the ministry of health and Family welfare also passed similar regulation for the management of dead bodies. The daily news editorials are evident that all the regulation seems to be in vain and had their limitation while addressing this pandemic situation and dead body management.
Rights of deceased recognised in Indian Penal Code-
Sections 297, 404, 499, and 503 of Indian criminal law acknowledge some of the rights of the deceased[21]. Trespassing on burial grounds is an offence punished under Section 297 of the Indian Criminal Code. This clause protects burial grounds against anyone who knows or intentionally urges individuals to damage or offend religious beliefs or sensibilities and prohibits trespassing at funeral places or areas where dead remains are stored. Any individual who gives any indignity to a body through any act is equally guilty under this clause. The maximum punishment provided for such action shall be 1 year or with a fine or imprisonment including a fine. In Jamuna das Paras Ram v. State of Madhya Pradesh, the high court of MP recognised that the word person includes the human body and shall be provided with rights irrespective of being alive or dead[22]. Thus, the right to decent burial covers in IPC. Certain rights are also transmitted to the deceased person, including
Section 404 of IPC- Protects against dishonest misappropriation of a deceased person’s property; anyone who commits such an offence shall suffer a maximum sentence of 3 years of imprisonment, with the penalty extending to 7 years if the perpetrator employs as a clerk or servant.
Whereas section 499 defines defamation. This provision also includes defamation against a deceased person in its explanation clause 1, and its punishment is covered by section 500, which imposes a maximum sentence of two years of imprisonment or a fine or both.
Section 503- The offence of criminal intimidation is defined in this section of the IPC and the explanation clause emphasizes the protection of the deceased’s right against the threat of harm to their reputation. Criminal intimidation is punishable with years of imprisonment, a fine, or both under section 506 of the Indian Penal Code.
Later, Section 377 of the IPC is expanded to include an unnatural sexual offence, as well as sexual offences involving dead bodies. But after the stuck down[3][23] these offences are not covered by any kind of protection.
In the recent case of Bombay High court[24], the division bench gave its judgement regarding covid 19 patient dead bodies. At the initiation of this case the municipal corporation of Mumbai prescribed to dispose of all the patient bodies irrespective of their religion. The court had ruled that the patient’s relatives and friends cannot be denied a final visit, and they are free to make final burial arrangements for their loved ones based on their religious beliefs. On the very same day, the civic body approved the performance of burial ceremonies in the city itself, with the caveat that the grounds be large enough to prevent disease transmission. The petitioner challenged the decision in court, but the Bombay high court upheld the previous ruling, stating that the right to burial is covered under the basic right to religion. The court found no rationale and thus concluded that, at this time, disposing of the cadaver of any suspected or confirmed Covid 19 an infected individual will cause harm to the living.
Deceased rights over their body under the Transplantation of Human Organs Act, 1994
A person does have the right and safeguard for the protection over his dead body from any type of mutilation, and only by the consent of that person while he or she was alive their waste or any its organs to be taken out. In the absence of such consent, the rights usually transfer to the spouse and in absence of the spouse then on the consent of his or her kith and kin or the State, if the body is unclaimed. The state must protect the rights of the diseased person and prevent offence over the dead body.
In the case of Radomer Russ-Pol Unterstitzund G Verein Vs Posner, it was held that if a married person dies the storey of his/her remain and burial or cremation lies with the spouse[25].
NHRC guidelines for the saviour of dumped dead bodies in sacred river Ganga
The acting chairperson of NHRC (National Human Rights Commission) Justice Prafulla Pant Mulay who served as a former judge of the supreme court and others including Jyotika Kalra and Dr Dnyaneshwar Manohar delivered 11 recommendations regarding dead bodies found in the holy river Ganga. NHRC issued notices to the Union Ministry of Jal Shakti (Department of Water Resources, River Development and Ganga Rejuvenation), and the chief secretaries of the states calling for an action taken report within four weeks[26].
Recommendations-
- The acknowledgement of the rights of the dead under article 21 leads to the introduction of particular laws to preserve those rights.
- The temporary arrangement should be frantically preparing for the cremation and burial of deceased remains as quickly as possible.
- The employees at the burial or cremation cemetery should be given the required equipment to minimise the likelihood of dead bodies being dumped.
- Funeral rites and rituals that do not require contact with the deceased should be permitted.
- In the absence of family or friends, the state should take care of the last rites of the deceased per the deceased’s religion.
- The bodies of the deceased are being piled up while transportation shall be prohibited.
- The practice of mass burial or cremation is forbidden since it violates the dead’s dignity.
- During this devastating epidemic, the state should handle the identification of the corpse, and the official authorities should assure the handling of a dead or missing individual.
- The cost of an ambulance service for transporting a deceased person must be regulated to safeguard the family from exploitation.
- Staff members working on the burial or cremation grounds should be vaccinated as soon as possible and paid fairly.
- To reduce pollution from enormous blazing pyre smoke, electronic crematoriums may be encouraged.
International Guidelines
- ICRC forensic Units – The International Committee of the Red Cross (ICRC) was established in 1863. It takes humanitarian law and its implementation into humanitarian law into consideration during an emergency. During this pandemic, the ICRC’s forensic sections have issued certain instructions for the correct handling of dead remains. There are rules for practitioners, planners, decision-makers, and managers in these guidelines.
- Preparatory Guideline for Mass Fatality Response Plan– It outlines the procedures for determining which department is in charge of a certain task. It also guarantees that the roles and procedural components of the management level workers are in sync. It deals with the retrieval and transfer of bodies, the issuance of death certificates, the storage and viewing of bodies by relatives, the correct cremation or burial of bodies, and so on.[27]
- WHO guidelines regarding dead bodies of suspected/confirmed corona patients- The World Health Organization’s guidelines are aimed at health care facilities and authorities in charge of mortuaries, and it covers topics such as body packing, cleaning equipment management, and dos and don’ts for health care, hospitals, and patient families.
- Report by European Union– On complementary EU aims to provide aid to members of EU and UK states. This report also facilitates public health and preparedness of dead bodies.
Conclusion-
The international and national organisations are both contributing to the management of this devastating fury. Humanity must come first, and the gracious mother earth must be restored. This is a truth that only a few individuals are aware of. Less than 10% work for welfare, 50% wait for others to take action, and the rest act inhumanely, seizing every opportunity to abuse and profit from the dead. People in the third category have a detrimental effect. To restrict their actions, we need effective legislation.
Those who exploit under the guise of medical treatment or funeral ceremonies will be held accountable and punished for their actions. Dumping bodies in rivers is a serious crime that has to be investigated and punished. It is now obvious that persons have certain rights even after they die. After death, their body, property, and reputation are all things to be concerned about. Only a tranquil slumber in the grave is required for the deceased. This is the only thing we are supposed to adhere to. Every person has the right to a decent death. It makes no difference whether they are deprived of their right due to natural or accidental death. The state must protect humanity among all people, regardless of their economic situation. For Indian citizens, the second wave of covid is heart-breaking. Courts, without a doubt, are carrying out their duties with compassion and charity.
The legislature, on the other hand, does not appear to be in the same boat. Only a heart full of compassion, humanity, mercy and unity is a key chain to confront this pandemic. Many changes in attitudes, regulations, and actions will be required to improve end-of-life care. Patients’ and their families’ emotion, expectations, and sentiments are crucial. The ability of patients, families, and physicians to develop a care plan that serves the dying person properly is shaped and often hampered by decisions made by health plan management, institutional administrators, and government authorities.
“Our unconscious does not believe in its death; it behaves as if immortal,” Freud may have been correct[28]. Despite this, the committee was hopeful that this society would have the conscious intelligence and spirit necessary to understand death’s actuality and the likelihood of it causing grief. It was also hopeful that people would work together to develop humane care systems that ensure the consistent application of existing knowledge to prevent and relieve suffering, as well as attempts to give individuals the right care at the right time and in the right way.
Author Anu Priya is studying law at Kalinga University, Raipur
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[2] Piyush Rai, Soaring cost of cremation singes families of dead, The Times of India,
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[4] Vikash Chandra @ Ouddu Baba v. The Union of India & Ors.: (2008) 2 PLJR 127, https://www.legitquest.com/case/vineet-ruia-v-the-principal-secretary-ministry-of-health-family-welfare-and-ors/1CD31E (last visited 7 June 2021)
[5] Stimmel, Stimmel & Roeser, Rights and Obligations As To Human Remains and Burial, https://www.stimmel-law.com/en/articles/rights-and-obligations-human-remains-and-burial (last visited 7 June 2021)
[6] s.46 IPC, 1863
[7] 6 (94 U.S. 111)
[8] Craig S. Smith, Posthumous marriage is legal in France with governmental approval, Paris Journal: A Love That Transcends Death Is Blessed by the State, N.Y. TIMES (last visited 7 June 2021)
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[10] Bar and Bench, Article 21 includes the right to a decent burial/ last rites: Plea in Calcutta HC to hand over dead bodies of COVID-19 patients to family, https://www.barandbench.com/news/litigation/plea-in-calcutta-hc-to-hand-over-dead-bodies-of-covid-19-patients-to-family (last visited 7 June 2021)
[11] 8 Francis Coralie v. Union Territory of Delhi, AIR 1981 SC 746
[12]Mehal Jain, COVID-19 Victims Have A Right To Decent Burial As Per Religion Under Articles 21 And 25: Calcutta HC issues Guidelines, https://www.livelaw.in/news-updates/covid-19-victims-have-a-right-to-decent-burial-as-per-religion-is-part-of-articles-21-and-25-calcutta-hc-issues-guidelines-163074 (last visited 7 June 2021)
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[14] Budhadev Karmaskar vs. State of West Bengal AIR 2011 SC 2636
[15] Kharak Singh v. State of UP, AIR 1963 SC 1295
[16] Sunil Batra v. Delhi Administration, (1978) 4 SEC 494;
Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180
[17] Ramji Singh @ Mujeeb Bhai v. State of U.P. & Ors: (2009) 5 All LJ 376
Vineet Ruia v. The Principal Secretary, Ministry of Health & Family Welfare and Ors, https://www.legitquest.com/case/vineet-ruia-v-the-principal-secretary-ministry-of-health-family-welfare-and-ors/1CD31E (last visited 7 June 2021)
[18] Ashray Adhikar Abhiyan v. Union of India, 2002 WCP 143 of 2001
[19]The Economic Times, Coronavirus: Right to decent burial facet of right to life, says Bombay High Court, https:// economictimes.indiatimes.com/news/politics-and-nation/virus-right-to-decent-burial-facet-of-right-to-life-says-hc/articleshow/75900298.cms (last visited 7 June 2021)
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(Last visited 9 June 2021)
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[23] Navtej Singh Johar v. Union of India 1 MANU/SC/0947/2018
[24] Pradeep Gandhy Vs State of Maharashtra”, 2020 SCC OnLine Bom 662
[25] Radomer Russ-Pol Unterstitzund G Verein Vs Posner”, 176 Md. 332 (Md. 1936)]
[26] V. Venkatesan, By Issuing Guidelines to Protect the Rights of the Dead, Has NHRC Rediscovered Its Potential? The Wire, https://thewire.in/rights/nhrc-covid-19-bodies-ganga-rights-of-the-dead (last visited 9 June 2021)
[27] Dinesh Singh Chauhan, Northline, right to dignified, decent cremation is a fundamental right under Article 21, https://www.thenorthlines.com/right-to-dignified-decent-cremation-is-fundamental-right-under-article-21/ (last visited 9 June 2021)
[28] (Freud, 1915, in Freud, 1959, p. 304).
