After the lockdown, cases of widespread violation of the right of the dead are coming into light. The desolate videos and pictures show that death is no end to the agony.
SC took a suo moto cognizance of handling of the COVID 19 patients dead bodies. On June 8 2020, the former Union law minister Ashwani Kumar wrote a letter to CJI S.A. Bobde. He urged him to seek suo moto cognizance of reports about the issues with Covid-19 patients. The issues focus on manhandling and ill-treatment of dead bodies. The letter mentioned details of the incident where a dead body is into a pit for burial in Puducherry. He also mentioned a Covid-19 patient chained to a bed in Madhya Pradesh hospital.
He further referred to various landmark judgments. Wherein, the SC had declared that the right to die with dignity and the right to decent burial is fundamental. The letter highlighted the issues of piling up of bodies in hospitals and mortuaries. Further, it also deals with non-availability of adequate cremation/burial grounds.
The letter also added non-functioning of electric crematoriums. The CJI SA Bobde took note of the situation. Justice Ashok Bhushan headed the bench, it was in the case of ‘Proper Treatment of COVID-19 Patients and Dignified Handling of Dead Bodies in Hospitals. The Court heard the matter on June 12. It termed the situation created by Covid-19 pandemic in the capital as “horrendous” (Also in the States of Maharashtra, Tamil Nadu and West Bengal).
There are allegations of bodies dumped in garbage bins. They were treated worse than animals. It issued notices to the chief secretaries of five-six states. Further also asked them to file their response.
Right to dignity in Death
Former CJI Dipak Misra, in his opinion in Common Cause vs UOI, in different context observed:
“In a certain context, it can be said, life and dignity is an unacceptable defeat and life that meets death with dignity is a value to be aspired for and a moment for celebration”.
Article 21 of the Indian Constitution states that no person shall be deprived of his life or personal liberty. The Supreme Court has interpreted Article 21 to include various rights within its fold. In P. Rathinam v. Union of India, the Supreme Court held that the word ‘life’ in Article 21 means right to live with human dignity. It does not merely connote continued drudgery. Right to dignity is not only available to a living man but also his body after his death.
The Supreme Court in Parmanand Katara (Pt.) v. Union of India though rejected the challenge to the method of execution by hanging, it accepted the contention of the petitioner that suspending the body of a condemned convict for a period of half an hour after death by execution was a violation of its right to dignity. Further in S. Sethu Raja vs The Chief Secretary, it directed authorities to bring back the petitioner’s son’s dead body from Malaysia. It was also said in the case:
“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”.
One can also trace the right to a decent funeral in Article 25 of the Constitution.
Right to a Decent Funeral in Covid-19
Right now, times are crucial and challenging. The third of the triple tragedy lies in the thought of a loved one being cremated or buried. According to WHO, people who die from COVID-19 can be either buried or cremated. Unlike Ebola virus whose levels remain high after death, the after-death infection in Covid-19 is further explained by the Royal College of Pathologists, UK.
It states “With regard to the risk to Mortuary staff, and it is greater from visitors than the deceased”. Hence it is dismissed that burying the dead patients of Covid-19 poses no danger to the public. Guidelines are further issued by the Central Government on Covid-19, and this nowhere bans funeral or burial. The orders issued by the Home Ministry from time-to-time have provided a set of guidelines. This is about the regulation of the dead body management in the times of pandemic.
The case of Pradeep Gandhy vs the State of Maharashtra, addresses the issue of burial and last rites of a Covid-19 patient’s body. The petitioner challenged the amended circular of MCGM because the burial of Covid-19 dead bodies could lead to the further spreading of Covid-19. The High Court dismissed the petition to uphold the amended circular. It also noted the right of burial as part of the right to freedom of religion. Further, it noted that there was no evidence to prove that Covid-19 infection may spread to living human beings from any suspected/confirmed Covid-19 patients.
Religion in Times of Covid-19 death
In a country like India, religious faith plays an essential role in this process. For hundreds of years, Parsi Zoroastrians in India have practised the system of sky burial. Bombay Parsi activists pointed out to the Bombay high court order where the Court ruled in favour of Muslims. It allowed them to bury their community members who died due to COVID 19.
Nevertheless, the denial of the access to Doongerwadi sky burial in Mumbai to the Parsis happened. Forced cremation of Parsi patients is taking place. After widespread criticism, the trustees finally released a statement saying that in the method of consignment of dead bodies it means giving ritual bath to the dead. Here, the pallbearers will have to touch the body at various stages and subject to infection.
Religious Freedom and Social Distancing
In situations where anyone gets infected, the entire complex gets quarantined, and they will not be able even to consign the non-COVID deaths. The majority of BMC’s mode of disposal of bodies is cremation at electric crematoria. Muslim and Christian families have faced difficulty owing to same. India’s nationwide caseload overtook Britain to become fourth-largest in the world.
The cemeteries and crematoriums are particularly overwhelmed. So there is not much of a ceremony either. Extension of working hours also generally happen. Hence there is no time for the individual cremation ceremony. No incense, garlands and chanting either. Now when bodies arrive at Muslim cemetery in hearses manned by crews in hazmat suits, but there are no prayers, no sermons and mourners can view them.
Thus, in these times a blatant violation of the right of the dead is a sad commentary on the state of affairs in our country. The Governments and society need to be extra sensitive in protecting the rights of the dead. Ensuring respectful rites are accorded to the dead bodies is a minor expectation from a welfare state.
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