Prerna Mayea a third year law student of Institute of Law, Nirma University, Ahmedabad highlights the rights of a deceased person during the Covid-19 Pandemic.

INTRODUCTION

A person during his life is provided with several rights by various legislations across the globe. For example, in India, Article 21 of the Constitution lays down that “No person shall be deprived of his life and personal liberty except according to a procedure established by law.”[1] However, the definition of the word ‘person’ is not provided in the definition clause (Article 366) of the Constitution. Even the definitions provided in Section 3(42) of the General Clauses Act, 1897, and Section 11 of The Indian Penal Code, 1860, do not provide a clear insight. Therefore, the question arises that whether a person who is declared ‘dead’ be regarded as a ‘person’ under the legal regime. 

Salmond observed that the personality of a human commences with their birth and terminates with their death.[2] Thus, a dead person is not regarded as a person under the law. However, he also remarked that dead persons have certain rights in a macro sense, which will include his body, reputation, and estate.

Since time immemorial, it has been believed that the corpses must be treated with reverence and allowed to rest unmolested and undisturbed. International covenants also provide for honoring the remains of dead[3] And their proper management and disposal.[4] This position has also been upheld in Indian law through various statues and a series of judgments. Section 297 of I.P.C. regards the trespassing on places of performance of funeral rites or depositories for the remains of the dead, with the intent to wound feelings or dignity of any person or a corpse, as an offence.[5] In Parmanand Katara, Advocate v. Union of India & Anr., the Supreme Court observed that the right to dignity and fair treatment under Article 21 is not only available to a living man but also to his body after his death.[6] The Allahabad High Court, in the case of Ramji Singh vs. State of U.P., also ruled that right to live with dignity should have a wider application and is also extended to a dead person whose body must be respected. Therefore, the word ‘person’ in Article 21 includes a dead person in a limited sense, and duty falls upon the state, both under law and as a welfare state to protect these rights and ensure a dignified funeral in accordance with religious beliefs of the person.

RIGHTS GRANTED TO THE DECEASED IN INDIAN LAW

  1. Right to a Decent Funeral

The law seeks to ensure decent burial or cremation of a dead man’s corpse as per their religious beliefs.[7] This was also upheld by the Supreme Court in Ashray Adhikar Abhiyan v. Union of India, where an issue was raised regarding the obligation of the state towards homeless people who died on the road. In a P.I.L. filed in 2013 regarding bodies dumped in rivers and other public places, S.C. had given directions for disposing of the unclaimed dead bodies in a decent manner.[8] The Bihar H.C. in Vikash Chandra v. Union of India has also held that hospital staff and government officials shall dispose of the unclaimed bodies in accordance with law by providing respect to the dead. The last rites should be done in accordance with the religion of the deceased, in cases where it’s identifiable[9] Such a right of a dead person must be considered a part of human dignity. 

In addition to the above scenarios, another major concern that arises is the disposal of dead bodies in times on wars, natural disasters, epidemics and pandemics, where a large number of dead bodies which are not identifiable keep piling up in large number. Common graves or mass cremations have been prevalent to ensure the rapid disposal of the corpses. The right to decent burial is intrinsic to a person’s dignity, and so even during such times, the government is required to ensure the decent burial in accordance with the National Disaster Management Guidelines.[10] 

However, even after the formulation of such guidelines, several problems have surfaced regarding the disposal of dead bodies of people dying due to COVID-19. The infected dead bodies are being mishandled by families who keep it at their homes, do not allow the cremation, or refuse to accept the bodies.[11] Crematoriums are refusing to perform the last rites of the deceased.[12] The burial of such dead bodies is being obstructed by locals on the fear of shedding of infection. The Madras H.C. took suo-moto cognizance of this situation and noted that citizens must abide by the guidelines issued by the ministry and refrain from taking law in their own hands.[13] Several petitions are being filed in courts concerning safe management and cremation of dead bodies. One such petitioner demanded the stay on the burial of infected corpses near densely populated areas as it will lead to the spreading of infection through the soil and underground water. He also contended that the health of the masses should take precedence over the religious rights of the deceased’s family members.[14] It was observed by S.C. that the contentions are not backed by a genuinely scientific claim.    

In the light of unprecedented COVID-19 pandemic, the Ministry of Health & Family Welfare has issued special guidelines for the management of dead bodies, which specify that standard precautions like hand hygiene, social distancing, disinfestation, etc. must be taken to avoid shedding of the virus.[15] The ministry has also allowed particular religious rituals that do not require any contact with the corpse, like reading religious scripts, sprinkling holy water, etc. It has also prohibited large gatherings at crematoriums/burial grounds. The ministry has suggested electric/CNG-run crematoria or usage of airtight coffins in cases of burial. Thus, the government has tried to maintain a balance between the health of its citizens and the religious rights of the deceased’s family members.

  1. Right to Die with Dignity

When the person is not bestowed with a decent cremation/burial, his right to a decent funeral is infringed as a result of which his right to die with dignity is infringed as well. Death with dignity has been acknowledgment as a fundamental right under Article 21 of the Indian Constitution after the celebrated Supreme Court judgment in Common Cause vs. U.O.I. Dealing with the issue of the legal validity of euthanasia. It was remarked by the court that the right to live with dignity and the right to die with dignity are two interwoven concepts that are inseparable.[16] It was observed that while a person lies in a persistent vegetative state, the process of natural death has commenced, and death is certain; he has a right to die with dignity. Right to have a dignified life extends till death, including the ‘dignified procedure of death’.[17] On an interpretation of these words ‘dignified procedure of death,’ it can be concluded that it will also include the dignified and decent funeral. A dignified funeral would mean that the body of the deceased should be buried/ cremated with the due respect, the same respect as would have been accorded to him, had he been alive. It is fundamental not only to the bodily integrity and autonomy of the dead person but also to his kith and kin. 

CONCLUSION

With the number of deaths due to COVID-19 taking a toll, it is essential that the dead bodies are subjected to a dignified funeral. Citizens must be informed about the guidelines by the Union Health Ministry and should co-operate in such challenging times by following the guidelines. If courts are mandated to fulfill the desires of a deceased person by executing his will, the same courts must also ensure compliance with the appropriate directions issued by the Union Health Ministry for dignified disposal of their bodies after their death, to uphold the right to die with dignity of such individuals.    


Prerna Mayea is a third year law student from Institute of Law, Nirma University, Ahmedabad.


[1]Article 21, The Constitution Of India, 1950.

[2]Fitzgerald, P.J.: Salmond On Jurisprudence, (12th ed.), p.301. 

[3]Australia, Manual on Law of Armed Conflict, Australia Defence Force Publication, §998 (1994).

[4]U.N. Commission on Human Rights, Res. 2005/26, (April 19, 2005). 

[5]Section 297, The Indian Penal code, 1860.

[6]Parmanand Katara, Advocate v. Union of India & Anr., (1995) 3 S.C.C. 248.

[7]R. v. Stewart, (1840) 12 A.D.; R. v. Prince, (1884) 12 QBD 247.  

[8]Unclaimed dead bodies are given decent disposal: Supreme Court, Economic Times, (November 25, 2013, 08:25 PM), https://economictimes.indiatimes.com/news/politics-and-nation/unclaimed-dead-bodies-be-given-decent-disposal-supreme-court/articleshow/26370200.cms.

[9]civil Writ Jurisdiction Case No.23980 of 2019. 

[10]National Disaster Management Authority G.O.I., National Disaster Management Guidelines (2010), https://ndma.gov.in/images/guidelines/management-of-Dead-in-the-Aftermath-of-Disasters.pdf.

[11]Cheena Kapoor, COVID-19 in India: Mishandling infected dead bodies spell anxiety, Anadolu Agency (March 25, 2020), https://www.aa.com.tr/en/asia-pacific/covid-19-in-india-mishandling-infected-dead-bodies-spell-anxiety-/1778602.

[12]Chirag Gothi, Delhi crematorium refused to perform last rites of woman who died of coronavirus, says family, India Today (March 14, 2020, 01:25 PM), https://www.indiatoday.in/india/story/delhi-crematorium-refuses-to-cremate-woman-who-died-of-coronavirus-1655434-2020-03-14.

[13]Meera Emmanuel, “Article 21 includes right to decent burial”, Madras H.C. registers suo motu P.I.L. after mob obstructs burial of Doctor who died from COVID-19, Bar And Bench (April 21, 2020, 08:43 AM), https://www.barandbench.com/news/litigation/article-21-includes-right-to-decent-burial-madras-hc-registers-suo-motu-pil-after-mob-obstructs-burial-of-doctor-who-died-from-covid-19.

[14]Nilashish Chaudhary, ‘Health And Safety Concerns Should Precede over Religious Rights’: Plea In SC To Stop Burial Of Persons who Died of COVID-19, Live Law (May 1, 2020, 06:28 PM), https://www.livelaw.in/top-stories/health-and-safety-concerns-should-precede-over-religious-rights-plea-in-sc-to-stop-burial-of-persons-who-died-of-covid-19-in-3-mumbai-cemeteries-156064.

[15]Ministry Of Health And Family Welfare, Covid-19: Guidelines On Dead Body Management (2020), https://www.mohfw.gov.in/pdf/1584423700568_COVID19GuidelinesonDeadbodymanagement.pdf.

[16]Common Cause (a regd. Society) vs. U.O.I., (2018) 5 S.C.C. 1.

[17]Common Cause (a regd. Society) vs. U.O.I., (2018) 5 S.C.C. 1.

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

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