With the rise in COVID-19 deaths in India, the country is witnessing grave infraction of a person’s right to die with dignity. Tragic incidents have been reported from across the country where dead bodies are being thrown in a pit or being denied burial due to fear of getting infected. These events have led several courts to express their anguish and reiterate the rights of the dead.
Right to die with dignity under the Indian Constitution
Most rights are accrued to a ‘person’ in the Indian Constitution, but does this word entail a dead person? Article 366 of the Indian Constitution, which is the definition clause, does not include the definition of ‘person’. Section 3(42) of the General Clauses Act and Section 11 of the Indian Penal Code (IPC) are also unclear on this aspect. The Allahabad High Court in Ramji Singh @ Mujeeb Bhai v. State of U.P. has interpreted that a dead person should be construed in a limited sense of the word ‘person’ in Article 21 so as to accord the deceased some respect.
Dead persons have rights in two main areas: right to a dignified burial/cremation and crimes against the corpse. The Supreme Court of India in Parmanand Katara v. Union of India observed that a man’s body while he is living and after his death deserves the right to dignity and fair treatment under Article 21. Furthermore, in Ashray Adhikar Abhiyan v. Union of India, the Apex Court acknowledged the right to have a decent burial even to unclaimed bodies. In 2018, in the celebrated case of Common Cause v. Union of India, the Supreme Court, albeit in the context of euthanasia, observed that the right to die with dignity is an inseparable and inextricable facet of right to life.
Apart from this, even when there is a massive number of unidentified bodies during a natural disaster or a pandemic, under the National Disaster Management Guidelines, the government is required to give them a dignified disposal according to their religious and cultural beliefs, thus keeping their individuality intact. As far as crimes against the dead are concerned, the Indian Penal Code protects the rights of the dead such as Section 404 deals with dishonest misappropriation of dead man’s property, Section 499 protects defamation of a dead man and Section 297 prohibits trespassing on a burial ground.
Rights of the Dead during COVID-19
Recently a doctor in Chennai, who died after getting infected with the coronavirus, was denied burial at two cemeteries by the protesting mob. They pelted stones after which the colleagues of the deceased had to fill in the grave with their own hands. More such gut-wrenching incidents have been reported from across the country. A division bench of the Madras High Court took suo moto cognizance of this incident, recapitulating rights of the dead by invoking Section 297 of the IPC. The High Court also issued notice to the Tamil Nadu government and the police. Courts throughout the country have been reiterating the rights of the dead. For instance, The Delhi government was directed by the Delhi High Court to provide detailed status reports since crematoriums were returning bodies due to the lack of facilities.The Bombay High Court held that those who died as a result of COVID-19 are entitled to the same means of disposal as they would have been otherwise, if not for the pandemic. The court further broke the stigma and superstitions attached to the spread of the virus through dead bodies, clearing that individuals and localities are safe if the body is disposed of in compliance with the guidelines.
As the death rates spike, overwhelming morgues and funeral homes, management of the bodies becomes the need of the hour. Mass burial or cremation is generally the method adopted in colossal mishaps like a pandemic resulting in utter mismanagement. This makes it imperative that plans are made to alleviate the pain families and the broader society undergo in the wake of increasing deaths. India should learn from the plight of certain Italian cities where dead bodies had to be transported to neighboring cities as morgues had reached their maximum capacity. The 2005 resolution of the United Nations Commission on Human Rights highlighted the importance of dignified handling of human remains, as well as their proper management and disposal, while taking into account the needs of families.
The WHO, in March, released guidelines which state that bodies can be cremated or buried as per their religious sentiments, and the family members may view the body once it is prepared for the last rites. However, the family members should not come in proximity of the body and there should be no physical contact with it. Furthermore, the International Committee of the Red Cross has issued directives for each continent to ensure that the dead are disposed of with the utmost respect while upholding the cultural beliefs and proper sanitary precautions. In India, the Ministry of Health and Family Welfare (MoHFW), on 15th March, issued guidelines on the management of dead bodies of persons who died as a result of COVID-19, with the same essential principles as the WHO guidelines. These guidelines restrict the funeral attendees to immediate family members, and allow only those rituals and last rites that require no physical contact, like sprinkling holy water or reading from religious texts. While credit should be given to the ministry for the early issuance of the guidelines, the present need is for a revised version which incorporates the experiences of handling the disease in the past four months.
A remarkable example of such a legislation is the Coronavirus Act, 2020, passed by the UK parliament, which specifically deals with the COVID-19 pandemic and associated purposes. Section 58 talks about the powers of state authorities in terms of handling, transporting and disposing dead bodies. The authorities have drafted an elaborate law which recognizes the importance of a directive framework in such ordeals. The Indian authorities need to enact detailed legislations which are tailored according to the socio-cultural practices of the country, while maintaining a balance between public welfare and fundamental rights. Moreover, separate spaces must be earmarked for burying the bodies of people who have died of COVID-19 and the concept of deep burial should be followed. The general public must be educated that there is no chance of contamination from the dead if the proper procedure is followed. At the same time, adequate police protection must be provided to those facing unnecessary interruption in the burial of their kin.
With India becoming the 3rd worst COVID-19 hit country and the graph projected to peak in the following months, the need for a better legal framework becomes vital to maintain the sanctity of the dead, especially when their final days were full of suffering. The patients undergo emotional and physical trauma and their pain is further heightened by the absence of their loved ones around them during their final days. There is societal interest in early and dignified disposition of the deceased. The state is obligated, both as a welfare state and as a guardian of fundamental rights of persons, to properly dispose of a dead body keeping in mind the religious beliefs that the deceased professed.
What we need to work on together is to ensure these people get the dignity they deserve after death, and put an end to the horrifying images of bodies being thrown into burial pits without an ounce of decency, as if they are some kind of hazardous waste. People often don’t care how a body is handled until it’s their loved one. Whether dead or alive, a human body must be treated with dignity.
Views are personal.
Image credits: Image provided by the author
ABOUT THE AUTHOR
Parnika Mishra is pursuing law at Ram Manohar Lohiya National Law University, Lucknow and Pranav Nayar is pursuing law at Rajiv Gandhi National University of Law, Patiala.