The Ministry of Health and Family Welfare laid down guidelines for hospitals. This included guidelines for the disposal of COVID-affected dead bodies. The health care workers need to maintain hygiene and use Personal Protective Equipment. Also, they need to disinfect the bag housing the dead body. They must sterilize instruments and devices used on the patient.
Moreover, the precautions for crematoriums or the burial grounds were also laid down. Relatives were only allowed to view the dead body by unzipping the face end of the body bag. They allowed only religious rituals which do not need touching. There is a prohibition on bathing, hugging and kissing the dead body.
Mishandling of the COVID-19 Affected Dead Bodies
There have been many cases of mishandling of the COVID-affected dead bodies. The Hospital authorities have failed to take due diligence in this matter. The Supreme Court has taken Suo Moto cognizance of this issue.
The hospital authorities are mistreating the dead bodies of COVID-affected patients. In one instance, in Puducherry, authorities threw the dead body of Covid-19 patient into a pit. Furthermore, in Madhya Pradesh, they tied an older man to a bed when he failed to pay the fees for the treatment of COVID-19.
Reports also emerged that in LNGP Hospital of New Delhi, naked dead bodies lay on the floor beneath the beds of patients currently being treated. Moreover, other dead bodies are merely lying in the corridors unattended. No one even bothers to send them to the mortuary or for cremation. Furthermore, the reports also suggest that there are 108 bodies. All 80 storage racks are full, and there are 28 bodies on the floor, piled on top of each other.
When it comes to customary burial or cremation of these dead bodies, the citizens have not helped. Throughout the country, they have opposed the burial of such dead bodies. They fear that it would subject other people of getting infected with coronavirus. In Chennai, a medical doctor suffered a heart attack due to complication from Covid-19. When the family took the body to the cemetery, the residents opposed the burial of the body. The mob also attacked the ambulance and the people accompanying the body.
Right of Dignity to Deceased Persons
Such instances raise a vital question with regard to the rights of the dead person. The Judiciary has adopted a progressive approach when it comes to the Rights of the Deceased. Article 21 does not merely protect the rights of a living person but also includes rights of a dead person. The word “person” would also include a deceased person in a limited sense. The Right to live with dignity would extend to dead bodies to have them treated with respect and dignity.
In Pt. Parmanand Katara v. Union of India, Jail authorities kept the body of the executed prisoner suspended even after the doctor declared him dead. The Supreme Court upheld the Right to Dignity under Article 21 of the Constitution. It said that it is not only available to a living man, but also his body after his death.
The Judiciary has held that burial or cremation in a dignified manner is the responsibility of the State. But, it is not expressly provided in any statute. One such case is Ashray Adhikar Abhiyan Vs. Union of India. The Supreme Court had upheld the Right of a homeless deceased to have a decent burial. This should be as per his religious belief. The State has an obligation towards such people.
Other Related Judgements
In numerous judgements, the Judiciary has recognized the Right to Decent burial. In Sethu Raja v. The Chief Secretary, the Court held, “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. The Right to accord a decent burial or cremation to the dead body of a person should be taken to be a part of the Right to such human dignity.”
There was a similar approach in the case of Marimuthu v. State. The Court held, “Every human being is entitled to a decent disposal of his body after his death under his culture and tradition.”
Article 25 guarantees the Freedom to profess, practice and propagate any religion. A decent burial of the dead, with rites and ceremonies, is essential in Islam and Christianity. By burying them in given places, they are exercising their Right to Practice their Religion.
Hence, the protection forms in the Right to practice one’s religion under Article 25. The Supreme Court reiterated the same in the case of Vareed Porinchukutty v. State of Kerala and Ors. 1971 KLT 204. It held that practices regarded by the people as part of their religion are also matters of religion. It also held that the different modes of disposing of bodies are an integral part of their faith. While exercising this Right, they exercise their fundamental Right under Article 25.
Various Observed Apprehensions
The apprehension of the people that these dead bodies would pose a health risk to the public at large is unfounded. It is merely based on non-scientific assumptions. The Government of India has issued contrasting guidelines and advisories on the same. The Government concluded the following in their report:
“…transmission of COVID-19 is through droplets and that there is unlikely to be an increased risk of COVID infection from a dead body to health workers or family members who follow standard precautions while handling body.”
Also, the World Health Organization issued a similar document. It said that the dead bodies of COVID-affected people could be either buried or cremated. They said that the body of a Covid-19 victim is “generally not infectious.”
Moreover, the head of the Forensic Medicine Department of AIIMS, New Delhi, said the same. He said that “Cremation of a person who has died due to coronavirus poses no threat through any methods. It can be done using fire or electrical, gas or by burial.”
The Legislature has also incorporated various provisions protecting the rights of the deceased. Section 404 of the IPC says – dishonest misappropriation of a dead man’s property is an offence. Furthermore, Section 499 of the IPC deals with defamation. It stipulates that libel or slander against a deceased person is criminal defamation. Moreover, Section 503 of the IPC defines criminal intimidation. It includes threatening a person with injuring the reputation of a dead person dear to him, as an offence.
The Legislature and Judiciary have been progressive about the Rights of the Deceased. The guidelines regarding the disposal of COVID-affected dead bodies remain ambiguous. The State must ensure that such dead bodies should receive a decent burial/cremation. In such unprecedented times, even the family of the deceased cannot touch them. Providing them with cremation/burial in a dignified manner is the least that the State can ensure.
The Supreme Court has taken suo moto cognizance of this issue. The case is titled “In Re Proper Treatment of Covid-19 Patients and Dignified Handling of Dead Bodies in the Hospitals”. Recently, Madras High Court in a Suo-Moto case and the Bombay High Court in Pradeep Gandhy v. State of Maharashtra dealt with it. It held that Right to die with dignity is a fundamental right. This includes the Right to a decent burial or cremation. Article 21 of the Constitution guarantees this.
The Court decided both these cases post the outbreak of coronavirus. Therefore, we hope that the Supreme Court adopts a progressive approach and lays down specific guidelines to ensure the handling of such dead bodies in a dignified and respectful manner.
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