Gujarat HC Dismisses Petition to Allow Parsis to Perform Customary Funeral Rites; Says Fundamental Rights Are Subject to Public Order, Morality and Health

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The Gujarat High Court dismissed the petition seeking directions from the Court permitting the petitioners to carry out funeral rites according to their religious practices and held that “the safety and the welfare of the State is the supreme law.”

Background of the case

A petition was filed by the Surat Parsi Panchayat Board, a religious charitable trust registered under the Gujarat Public Trust Act, 1950. The petition was filed through its trustee Dr. Homi D. Doodhwala seeking an order or direction from the Court permitting the petitioners and its members to perform Dokhmenashini that is the last rites of members who died due to Covid-19 infection in accordance with their religious practices. This petition was filed in the context of the guidelines issued by the Ministry of Health and Family which regulated disposal of dead body of those who died due to Covid-19 infection.

Arguments before the Court

The petitioners stated that the guidelines issued by the Ministry of Health and Family named ‘Covid-19 Guidelines on Dead Body Management’ allowed two modes according to which dead bodies of those who died due to Covid-19 infection could be disposed of that is, either through cremation or burial. According to the petitioners, the guidelines were ignorant of the funeral practices of other religious communities. The petitioners contended that due to the guidelines they were unable to perform the last rites according to their religious faith. It was submitted that Dokhmenashini is an integral part of the Parsee community and that it was their fundamental right to practice their religion. According to the Counsels appearing on behalf of the petitioners, the guidelines were depriving the petitioners of their fundamental rights and that it was violative of Articles 14, 19, 21, 25, 26 and 29 of the Constitution of India. It was contended that there was no scientific study to prove that corona would spread if the body is not cremated or buried.

The Counsel appearing for the State stated that the implementation of the guidelines was necessary to prevent the further spread or transmission of the Covid-19 infection. The Counsel also highlighted the World Health Organization’s recommendations pertaining to body disposal.

Observations of Gujarat High Court

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The Court observed that the

guidelines issued in larger public interest considering extraordinary circumstances prevailing in the country, would take precedence over the individual interest as also over the religious faith and belief of a particular class of community.”

Court’s Decision

The Court made a reference to the observation made by the Hon’ble Supreme Court in the Suo Moto case relating to Kanwar Yatra, which stated that religious sentiments are subservient to the fundamental right of ‘Right to Health.’ Accordingly, the petition was dismissed on the ground that it lacked merit.

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