A single bench of Justice BP Collabawalla of the Bombay High court on April 27 denied interfering with the order of Brihanmumbai Municipal Corporation (BMC) where they approved three private Muslim cemeteries to be used as a burial site for COVID-19 patients. The Supreme court on May 4 dismissed the Special Leave Petition (SLP) challenging this interim order of the Bombay high court through video conferencing.
On April 13, some locals created a ruckus when the body of a 63-year-old Muslim person who died from the COVID-19 infection was brought for burial at the ground. After some protest finally, the body had to be buried somewhere else.
A petition was then filed by four residents, Pradeep Gandhy and others who claimed that the local people of the community are afraid of the spread of the virus if the burial is improperly handled since the cemeteries were located in the heart of Bandra (West) and were surrounded by densely populated regions. The petition also said, “There are approximately 3,00,000 residents in Bandra West region who live in the vicinity of the three cemeteries, making it a densely populated one.”
If the burial of COVID-19 victims is permitted at the three cemeteries, it will result in the spread of the virus through the soil and underground water contamination and gravely affect the health of the neighbouring residents.
The petitioner claimed that the State Government had originally issued a circular on March 30, directing that all COVID-19 infected deceased should be cremated and not buried, to avoid the risk of spreading of infection. However, due to undisclosed reasons, it modified this circular, and issued a fresh on April 9, 2020, permitting burial to take place in 20 notified cemeteries, which is contradictory to the previous circular. He also clarified that though there may be no scientific basis to the contrary, “it is precautionary in nature and imperative to be ‘safe rather than sorry’ in extraordinary times such as the present situation where there is no cure to the disease.” The petitioners said that the right to religion is also subject to public order and health of the larger community.
Advocate Pratap Nimbalkar appearing on behalf of the Trusts managing these cemeteries opposed the plea and argued that due diligence was being carried out before disposing of the bodies and that the petitioners had not placed any scientific reasoning to show the virus spreads through dead bodies.
He also pointed out a notification dated March 15, issued by Union Ministry of Health and Family affairs on guidelines on COVID-19 dead body management which stated the transmission of COVID 19 is through droplets. The notification says there is unlikely to be an increased risk of COVID 19 infection from a dead body to anyone if standard precautions are followed while disposal.
An Intervention application was also filed by the Jamiat Ulama-I-Hind, saying that burial is essential to the religion of Islam and that it is a part of their right to religion under Article 25 of the Indian constitution. The application further contended that the plea was based on the petitioner’s baseless apprehensions which also lacked scientific support.
The court accepted the Respondent’s arguments and noted that the petitioners have not submitted any substantial material to show or prove that burial of a body infected with COVID-19 would put at risk the residents in the vicinity. Since the order was passed at an interim stage of the hearing, the Bench deemed it appropriate to send the petitioners back to the High court for final disposal of the case.
While disposing of the petition, the bench said that due to the health concerns involved, the matter should be disposed of at the earliest preferably within a period of two weeks. Since the petition itself is dismissed, the intervention application was also disposed of accordingly.
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