Does Right to Health precedes Right to Practice One’s Religion? Supreme Court orders Bombay High Court to decide the question within 2 weeks

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The Supreme Court on 4th May 2020 had disposed of a petition under Article 136 of the Constitution, praying for an interim stay on the burial of deceased Muslims infected with Covid-19 in the burial grounds near Bandra West, Mumbai.

The burial of the deceased forms an essential part of the Muslim religion, however,  a bar had been sought on the same listing it to be essential for the protection of the health of the community at large.

Brief Facts

The petitioner, Pradeep Ganguly resident of Bandra near Konkani Muslim Kabrastan had previously moved the Bombay High Court challenging the Bombay Municipal Corporation’s (BMC) permission to use the cemeteries of Bandra West for the burial of the bodies of those deceased who have died due to the Covid-19 virus and had prayed for interim stay on the same.

He had feared the spread of the virus through the infected buried bodies. The cemeteries mentioned in the petition Konkani Muslim Cemetery, Khoja Sunnat Jamat Kabrastan and KhojaIsna Ashari Jammat Kabrastan.

The contention of the petitioner was that the area where the interconnected cemeteries were present are densely populated and surrounded by residential colonies. He stated that potential catastrophe could befall on the residents of these colonies if the burial continues and content that the “present unprecedented health situation ought to take precedence over the religious rights of the deceased’s family members.”

The Bombay High Court had however on April 27, 2020, refused to grant relief to the petitioner and had directed the BMC to remove the three locks which were put on the cemetery gate by the residents on April 13, 2020.

The Court took note of the guidelines issued for dead body management during Covid-19 pandemic by the Government of India and the Ministry of Health and Family Welfare. These guidelines stated that there was an unlikely possibility of an increased risk of COVID infection from a dead body to health workers or family members when standard precautions are followed.

They further contemplate the burial of the deceased persons and the steps to handle the same. The petitioner had then filed for a Special Leave Petition (SLP) in the Hon’ble Supreme Court against the order of the Bombay High Court seeking the same relief.

Petitioner’s Arguments

The petitioner submitted before the Hon’ble Supreme Court that there were several other cemeteries in Mumbai like Aarey Colony and Goregaon East which were not as densely populated as Bandra East and must be used instead.

He asserted that the right to health must take precedence over religious rights in such unprecedented times. In the context of shifting of graves of the Muslims, the petitioner relied on Gulam Abbas v. State of U.P.  and Mohd. Hamid v. Badi Masjid Trust and stated their right under Article 25 and 26 of the Constitution should be subjected to public order and health of the community at large.

The petition stated that the infection might spread through the buried bodies via underground water and soil, however, clarified that presently there was no scientific evidence contrary or corroborative of the same, and the stay must be put as a preventive measure.

Hence, the petitioner pleaded to stay the burial of the infected bodies in the 3 cemeteries present of Bandra West and prayed for the same to be directed to less populated areas.

Issues before the Court

Whether the High Court erred in not granting an interim stay of the burial of dead bodies of patients infected with Covid-19 in the subject cemeteries, as it would cause irreparable damage to the petitioner’s neighbourhood.

Whether in the extraordinary facts and situation, the right to health of the individuals in the petitioner’s neighbourhood adjacent to the subject cemeteries ought to override the right to the burial of the deceased.

Whether there is a right to burial at a particular place and cemetery when there is a safer alternative available.

Court’s Decision

The Supreme Court has directed the plea again to the Bombay High Court giving it a two week time period to decide on the above-stated questions of law and grant/refuse the relief prayed.

Meanwhile, an intervention petition has also been filed in the Supreme Court by the Jamiat Ulama-i-Hind asserting that no such plea can be granted as burial forms an integral part of the Muslim religion.

It is now a matter of utmost constitutional importance before the Bombay High Court and it remains to be seen if one constitutional right supersedes the other in exceptional circumstances such as the present.


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