Dinesh Singh Chauhan
Whether the Human Remains / Dead Bodies of persons inflicted with Covid-19 can be disposed of by the administration unceremoniously and in an undignified manner without even a semblance of showing respect to the mortal remains?
”One may live as a Conqueror, a King or a Magistrate, but he must die as a Man. The bed of Death brings every Human Being to his pure individuality, to the intense contemplation of that deepest and most solemn of all relations. The relation between the creature and his creator”.
– Daniel Webster
There is no scope for doubt any more that the right to life enshrined in Article 21 of the Constitution of India includes the right to life with dignity. Living with dignity includes not only the dignity of a person when he is alive but also the dignity following his death. The right to dignity and fair treatment under Article 21 of the Constitution is not only available to a living person but also to his mortal remains after his demise. Disposal of a human body, whether or not the person dies of Covid-19, whether by cremation or burial, should be done with due respect and solemnness. The near and dear ones of a deceased person who had contracted Covid-19 should have an opportunity to have a final look at the human remains of the person and to pay their last respect and homage to the departed soul.
Since the death is imminent and certain, a right to die with dignity. is a fundamental right and thus, an integral part of Art. 21. Right to live a dignified life extends up to the point of death including the dignified procedure of death. The right to die sans pain and suffering was considered fundamental to one’s bodily autonomy and integrity, similarly right to decent burial also forms an important facet of Article 21 of the Constitution.
Today the whole world is dealing with the challenges posed by an unforeseen Pandemic i.e. COVID-19. This Pandemic has resulted in the infringement of various fundamental human rights, which have been accorded protection in Constitution of India, like Right to Employment, Right to Food, Right to Privacy, Right to Freedom of Speech & Expression, Right to Health, Right to Free Movement, etc. The fundamental human rights most affected are “Right to Health” and “Right to life which also includes Right to die with dignity”.
Legislative Mechanism in India
Article 21 of the Constitution of India states that “No person shall be deprived of his life or personal liberty except according to a procedure established by law.” According to Bhagwati, J., Article 21 “embodies a constitutional value of supreme importance in a democratic society.” Iyer, J., has characterized Article 21 as “the procedural magna carta protective of life and liberty.
Article 21 of the Constitution prohibits the deprivation of the above rights except according to a procedure established by law. Article 21 of the Constitution of India corresponds to the Magna Carta of 1215, the Fifth Amendment to the American Constitution, Article 40 (4) of the Constitution of Eire 1937, and Article XXXI of the Constitution of Japan, 1946.
Article 25 of the Constitution deals with Right To Freedom Of Religion And Rights Of Minority. Besides religion and conscience, there appears three significant expressions used under Article 25 of the Constitution, namely, profess, practice and propagate. Right to profess means freedom of unhampered expression of spiritual conviction in words and action which one may articulate or confess or acknowledge or agree or allow or own or recognize as per one’s religion and conscience. Freedom of practice means individual’s right to give it expression in forms of private and public worship. Rituals, ceremonies, observances and functions are integral parts of a religion and freedom to practice such rituals and ceremonies are included in religious practices. The only test to determine whether a given religious customary practice is an integral part of a religion or not would be whether such custom is regarded by the community following the religion or not. The right to propagate one’s religion means the right to communicate or disseminate or spread or broadcast or proliferate or transmit or publicise one’s beliefs and faith to other persons through congregation or public discourse or public meetings.
At National level, the subject of ‘Health’ does not appear in many places of the Constitution of India, there are indirect and tacit references to health of the people and the role the State has to play in the development of health of the people. Article 47 of Directive Principles of State Policy – states that improvement of Public Health is one of the primary duties of State. Also, under Schedule VII powers relating to ‘Public Health Care’ and ‘Burial and Cremation Grounds’ is under the State List.
Therefore, the State Governments have the discretion to formulate laws regarding protection of Public Health and Management of Burial and Cremation Grounds. Deriving powers from the Seventh Schedule, various State Governments passed Regulations in response to COVID-19 in furtherance to the Epidemic Diseases Act. The 2019 National Disaster Management Plan, also deals with Biological Disaster and Health Emergency. This is the broad legal framework within which activities to contain COVID-19 are being carried out by the Union and State Governments. Similar Guidelines were passed by Ministry of Health and Family welfare which specifically dealt with the management of dead bodies. But all the relevant guidelines and legislations have their own limitations and they fail to address the issues raised above.
Judicial Pronouncements
The ongoing Pandemic, COVID-19 has created some problems concerning the rights of the Dead Body. Incidents of mishandling the Dead Bodies have been coming up with families either keeping infected Dead Bodies at home to pay their last respect or refusing to accept the Dead Bodies altogether. More and more Petitions are being filed in the Courts regarding safe management and disposal of COVID-19 infected bodies. Whenever ‘Right To Decent Burial’ is violated, it can be said that ‘Right to Death With Dignity’ is infringed too which is ensured through Article 21 of the Constitution.
The right to dignity is available not only to a living man but also to his body after his death as held by Supreme Court in [“Pt. Parmanand Katara, Advocate Vs Union of India and Anr.”, (1995) 3 SCC 248]. The Supreme Court reiterated in [“Ashray Adhikar Abhiyan Vs Union of India & Ors.”, (2002) 2 SCC 27], that the dead body of a homeless person who died on the street is entitled to a decent burial according to the religious faith to which he belonged.
Traditions and cultural aspects are inherent to the last rites of a person’s dead body. Right to a decent funeral can also be traced in Article 25 of the Constitution of India which provides for freedom of conscience and free profession, practice and propagation of religion subject to public order, morality and health and to the other fundamental rights under Part III of the Constitution.
The adage, “Funerals are for the living, not the dead,” you may be tempted to consider relinquishing control over what happens after your death to your descendants. After all, it is your loved ones who carry on after your death; it is them, as well as your friends and community, who may need an opportunity to grieve and remember you. They may even learn new things about you from others that will help them see you through the eyes of others.
By analyzing different Judgments and Statutes, it can be safely concluded that the right to live a dignified life extends up to the point of death including the dignified procedure of death. The phrase ‘dignified procedure of death’ in an expansive manner includes dignified disposal of the human remains of a deceased. The mortal remains of a deceased person must be treated with care, respect and dignity and have to be disposed of by burial or burning, according to the religion, in so far as the same is ascertainable, that the deceased person practiced. It makes no difference if the deceased person was infected with Covid-19. Of course, all requisite safety and precautionary measures must be taken by the persons who carry out the funeral.
(The author is Advocate High Court of Judicature, J&K, Jammu)
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