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Whether Right To Dignity And Fair Treatment Under Article 21 Of The Constitution Of India Is Not Only Available To A Living Man But Also To His Body After His Death?

The adage, Funerals are for the living, not the dead, you may be tempted to consider relinquishing control over what happens after your death to your descendants. After all, it is your loved ones who carry on after your death; it is them, as well as your friends and community, who may need an opportunity to grieve and remember you. They may even learn new things about you from others that will help them see you through the eyes of others.

Whether the Human Remains / Dead Bodies of persons inflicted with Covid-19 can be disposed of by the administration unceremoniously and in an undignified manner without even a semblance of showing respect to the mortal remains?

There is no scope for doubt any more that the right to life enshrined in Article 21 of the Constitution of India includes the right to life with dignity. 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 of India 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 solemnness. 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.

Today the whole world is dealing with the challenges posed by an unforeseen Pandemic i.e. COVID-19. This Pandemic has resulted in the infringement of various fundamental human rights, which have been accorded protection in Constitution of India, like Right to Employment, Right to Food, Right to Privacy, Right to Freedom of Speech & Expression, Right to Health, Right to Free Movement, etc. The fundamental human rights most affected are Right to Health and Right to life which also includes Right to die with dignity.

International Guidelines & Regulations
The infringed rights of Patients & Dead Bodies, as highlighted above, have been guaranteed by various International Law Instruments. One of the Resolutions of the United Nations Commission on Human Rights has especially underlined the importance of dignified handling of human remains, including their proper management and disposal as well as of respect for the needs of families. Similarly, the Universal Declaration of Human Rights, 1948 assures that everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including Medical Care, Sickness, and Disability.

On the similar lines, there are various Guidelines at International level:

  1. COVID-19 General Guidance for the Management of the Dead - ICRC Forensic Unit
    The International Committee of Red Cross (ICRC) was established in 1863, and operates worldwide to help people who are affected by conflict, armed violence and help in promotion of laws that protect victims of war. It takes action in response to emergencies and promotes respect for international humanitarian law and its implementation in National Law. The ICRC often uses External Communication documents as a way of exchanging information and messages with external audiences.

    The Pandemic situation led the forensic unit of the ICRC to release The general guidance for the management of the Dead. The documents talk about management of bodies or human remains of persons confirmed or believed to have died due to the novel Corona Virus.

    Part 1 of the document makes recommendations for the management of infectious dead bodies;
    It also provides guidance for practitioners, managers, planners and decision makers in the overall response to the pandemic. The document details general principles and guidelines for handling the body remains of an infected person by professional and technicians. It talks about special consideration for disposal of remains/hand over to relatives.

    Part II of the document Protracted Response to Increased Deaths From Covid-19:
    A Preparatory Guideline for Mass Fatality Response Plan is very relevant here as it contains all the essential elements to be addressed by various authorities like Health Ministry, Foreign Ministry, Cabinet of Ministers, the Head of the states etc. Even if such directives exist under a National Disaster Management Plan of a State, the recommendations made under the document are worth browsing.

    It details the Guidelines for management and coordinating between different State authorities, starting from identification of the department responsible for particular task to ensuring that the management level staff�s responsibilities and procedural aspects are in place. It also talks about recovery and transportation of bodies, handling of bodies, issuance of death certificates, storage and viewing of bodies by families, proper cremation or burial etc.
  2. Interim Guidance by World Health Organization on Infection Prevention and Control for the Safe Management of a Dead Body in the context of COVID-19
    The interim guidance by WHO has been specially designed to address those who tend to the dead bodies of confirmed or suspected corona patients. Therefore, it includes Managers of Health Care Centres and mortuaries, religious leaders and public health authorities within its scope.

    The document addresses various aspects of handling infectious dead bodies such as preparing and packing the body for transfer from a patient room in a health facility to an autopsy unit, mortuary, crematorium, or burial site, which talks about guidelines to be followed by trained technical staff for the purpose; Autopsy requirements which details the safety procedures to be followed in case autopsy is required over such bodies; Advice for mortuary care/funeral home which provides do�s and don�ts for them during this time; Environmental cleaning which details safety precautions afterwards and what chemicals to use for such cleansing; Burial or cremation in general and Burial by family members or for deaths at home. The said document also provides a detailed annexure as to what safety and cleaning equipment for management of dead bodies are to be kept at ready for the authority handling dead bodies.
  3. Technical Report by European Union on Considerations related to the safe handling of bodies of deceased persons with suspected or confirmed COVID-19
    Corollary to the above two documents, this technical report by the EU also aims at aiding the public health preparedness on handling bodies of persons deceased due to confirmed or suspected COVID-19. The target audience of this report is also the public health authorities of EU member states and the UK. The document provides detailed guidance & administrative measures on the safe handling of bodies of deceased persons with suspected or confirmed COVID-19 at the site of death, during transport, storage and preparation before burial/cremation, and during burial/cremation.

Legislative Mechanism in India
Article 21 of the Constitution of India reads as:
No person shall be deprived of his life or personal liberty except according to a procedure established by law.

According to Bhagwati, J., Article 21 embodies a constitutional value of supreme importance in a democratic society. Iyer, J., has characterized Article 21 as the procedural magna carta protective of life and liberty.

Article 21 of the Constitution of India prohibits the deprivation of the above rights except according to a procedure established by law. Article 21 of the Constitution of India corresponds to the Magna Carta of 1215, the Fifth Amendment to the American Constitution, Article 40 (4) of the Constitution of Eire 1937, and Article XXXI of the Constitution of Japan, 1946.

This right has been held to be the heart of the Constitution, the most organic and progressive provision in our living constitution, the foundation of our laws.

Article 25 of the Constitution of India reads as under;
25. Freedom of conscience and free profession, practice and propagation of religion:

  1. Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
  2. Nothing in this article shall affect the operation of any existing law or prevent the State from making any law:
    1. Regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
    2. Providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

Explanation I:
The Wearing and carrying of Kirpans shall be deemed to be included in the profession of the Sikh religion. Explanation II.�In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jain or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.

At National level, the subject of �Health� does not appear in many places of the Constitution of India, there are indirect and tacit references to health of the people and the role the State has to play in the development of health of the people. Article 47 of Directive Principles of State Policy (hereinafter DPSP) - states that improvement of Public Health is one of the primary duties of State. Also, under Schedule VII powers relating to �Public Health Care� and �Burial & Cremation Grounds� is under the State List.

Therefore, the State Governments have the discretion to formulate laws regarding protection of Public Health & Management of Burial & Cremation Grounds. Deriving powers from the Seventh Schedule, various State Governments passed Regulations in response to COVID-19 in furtherance to the Epidemic Diseases Act.

For example:
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.

Apart from these State Regulations, there are two national legislations which are relevant for COVID-19 Pandemic. The Epidemic Diseases Act, 1897 is one of the laws which were first enacted to tackle bubonic plague in Mumbai in former British India. This Act is meant for containment of epidemics by providing special powers that are required for the implementation of containment measures to control the spread of the disease. On April 22, 2020, the Epidemic Diseases (Amendment) Ordinance, 2020 was promulgated.

The Ordinance amends the Epidemic Diseases Act, 1897 and seeks to protect its Health Care Personnel, Clinics and other facilities. The Second piece of legislation is Disaster Management Act, 2005 under which the Guidelines on Management of Biological Disasters, 2008 were passed.

The 2019 National Disaster Management Plan, also deals with Biological Disaster and Health Emergency. This is the broad legal framework within which activities to contain COVID-19 are being carried out by the Union and State Governments. Similar Guidelines were passed by Ministry of Health & Family welfare which specifically dealt with the management of dead bodies. But all the relevant guidelines and legislations have their own limitations and they fail to address the issues raised above.

Judicial Pronouncements
The ongoing Pandemic, COVID-19 has created some problems concerning the rights of the Dead Body. Incidents of mishandling the Dead Bodies have been coming up with families either keeping infected Dead Bodies at home to pay their last respect or refusing to accept the Dead Bodies altogether. More and more Petitions are being filed in the Courts regarding safe management and disposal of COVID-19 infected bodies.

Whenever �Right To Decent Burial� is violated, it can be said that �Right to Death With Dignity� is infringed too which is ensured through Article 21 of the Constitution of India.

In [Pt. Parmanand Katara, Advocate Vs Union of India & Anr., (1995) 3 SCC 248], it was held by the Hon�ble Supreme Court that right to dignity is available not only to a living man but also to his body after his death. In that case, the Petitioner had challenged the method of execution of death sentence by hanging under the Punjab Jail Manual as inhuman and violative of Article 21 of the Constitution of India.

The Petitioner argued that the requirement under the Jail Manual that the body of a condemned convict be kept suspended for a period of half an hour after hanging was violative of right to dignity. Although the High Court rejected the challenge to the method of execution by hanging, it accepted the contention of the Petitioner that suspending the body for a period of half an hour after death amounted to violation of his right to dignity.

In [Ramji Singh @ Mujeeb Bhai Vs State of U.P. & Ors, 2009 SCC OnLine AII 310 = (2009) 5 AII LJ 376], a Division Bench of the Allahabad High Court held that the word and expression �person� in Article 21 of the Constitution of India includes a dead person in a limited sense and right to life with dignity should be extended in such a manner that his dead body is given respect, which he would have deserved, had he been alive, subject to his tradition, culture and the religion which he professed. The society should not be permitted to show any disgrace to the deceased.

In [Vikash Chandra @ Guddu Baba Vs. The Union of India & Ors., 2008 SCC OnLine Pat 905 = (2008) 2 PLJR 127], a Petition was filed regarding the undignified manner of disposal of dead bodies by Patna Medical College & Hospital. It was alleged that the dead bodies were thrown into River Ganges without even stitching the post-mortem operation openings. 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.

In [Ashray Adhikar Abhiyan Vs Union of India & Ors., (2002) 2 SCC 27], a letter was addressed to the then Hon�ble Chief Justice of India by the members of the Petitioner organization making a Complaint that homeless persons, when they died, are not cared for and are not given a decent burial thereby violating the right of a deceased homeless person to a decent burial.

The letter was treated as a Writ Petition & the Supreme Court heard the matter. Affidavits were filed by the Deputy Municipal Health Officer of the Municipal Corporation of Delhi and the Deputy Commissioner of Police, Delhi stating their roles in disposal of dead bodies of the homeless. On facts, the Supreme Court was satisfied with the actions of the police and the Municipal Corporation. However, it was 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.

In [S. Sethu Raja Vs The Chief Secretary [WP (MD) No. 3888 of 2007], the Madras High Court in a Judgment delivered on August 28, 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. In that case, the High Court directed the authorities to bring back the body of the Petitioner�s son who had died in Malaysia having gone there to work as a labour.

The Court held that there can be no dispute about the fact that the yearning of a father to perform the obsequies for his son who died in an alien land, is a result of traditional belief that the soul of a person would rest in peace only after the mortal remains are buried or burnt.

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 which provides for freedom of conscience and free profession, practice and propagation of religion subject to public order, morality and health and to the other fundamental rights under Part III of the Constitution of India.

In [Marimuthu Vs State by The Inspector of Police Pennadam Police Station, Vallalar Division, Cuddalore (Criminal Appeal No.618 of 1995), in its Judgment dated 7 August, 2002], the Madras High Court, placing reliance on the Supreme Court decision in Pt. Parmanand Katara (supra) observed that right to dignity and fair treatment, which is guaranteed under Article 21 of the Constitution of India, is not only available to a living person but also to his body after his death and that every human being is entitled to a decent burial of his body after his death in accordance with the culture and tradition and that inordinate delay in sending the dead body for autopsy when required, would be violation of the right to dignity guaranteed under Article 21 of the Constitution of India.

In the recent case of [Pradeep Gandhy Vs State of Maharashtra,: 2020 SCC OnLine Bom 662], a Division Bench of the Bombay High Court addressed the issue of burial and last rites of a Covid-19 patient�s dead body. In that case, initially, the Municipal Corporation of Greater Mumbai prescribed that all the dead bodies of Covid-19 patients should be cremated in the nearest crematorium irrespective of religion.

The said Circular further allowed family and friends of the deceased to make their own arrangements and take the body for burial outside Mumbai City�s jurisdiction after following all guidelines and precautions. On the same day, the Circular was amended to allow the burial of all Covid-19 patients� dead bodies in the city�s burial grounds provided they were large enough to not create the possibility of further spread in the neighbourhood.

The Petitioner challenged the Circular on the ground that burial of Covid-19 dead bodies could lead to further spreading of the disease. The High Court dismissed the Petition, upheld the amended Circular and noted the right of burial as part of the right to freedom of religion. The Court observed: 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.

In [Common Cause Vs Union of India, 2018 SCC OnLine SC 208], a Constitution Bench of the Hon�ble Supreme Court while dealing with the issue of euthanasia, set the stage for acknowledgment of the constitutional right to die with dignity. It was observed that the right to die with dignity is an inseparable and inextricable facet of the right to life with dignity.

While adverting to a situation of a dying man who is in a persistent vegetative state, the Hon�ble Judges pointed out that his process of natural death has already begun and since the death is imminent and certain, he has the right to die with dignity. The Court held that right to die with dignity is a Fundamental Right and thus an integral part of Article 21 of the Constitution of India.

In [Jamuna Das Paras Ram Vs State of Madhya Pradesh, AIR 1963 MP 106], the High Court of Madhya Pradesh held that, the word person cannot be so narrowly construed as to exclude the dead body of a human being, i.e. the human body must be given the right, irrespective of being alive or dead.

Therefore, it has been established that deceased persons do have some rights, if not all, which can�t be detached from them. Salmond has also rightly pointed out that:
There are three things in respect of which the worries of living person extend even after their death. Those are his/her body, his/her reputation and his/her property.

By analyzing different Judgments and Statutes, it can be safely concluded that the right to live a dignified life extends up to the point of death including the dignified procedure of death. The phrase dignified procedure of death in an expansive manner includes dignified disposal of the human remains of a deceased.

The mortal remains of a deceased 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 practiced. 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.

Written By: Dinesh Singh Chauhan, Advocate - High Court of Judicature, J&K, Jammu
Email: [email protected]; [email protected]

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