COVID19-XIII: The Rights of the ‘Dead’ in a Pandemic

Ritika Goyal and Smriti Shukla

Source-US News

This post is Part-13 of Our COVID-19 series

The outbreak of the COVID-19 and the increasing death toll, has taken us to a puzzling issue: whether rights are given to people even after their death? 

As per the present position of the law, if we take a look at the verbatim of Article 21 of the Constitution, it states that “No person shall be deprived of his life and personal liberty except according to a procedure established by law.” Every ‘living person’ gets innumerable rights almost under every law.

But the question, that one is stuck with is Whether the deceased can be called as a ‘dead person’, empowering them as ‘person’ in legal parlance.  Article 366 (Definition Clause) of the Indian Constitution is silent on the definition of the word ‘person’. If we look at Section 3(42) of the General Clauses Act, 1897 and Section 11 of the Indian Penal Code, 1860, even these two acts have vague definitions

Even though these statutes have led us into ambiguity, Supreme Court and High Courts of India have made it clear that there are certain rights which extend to people even after their death. High Court of Allahabad (Ramji Singh @ Mujeeb Bhai v. State of U.P.) has ruled that the word and expression ‘person’ in Article 21, includes the dead person in a limited sense and right to life with dignity should be extended in such a manner that his dead body is given respect, which he would have deserved, had he been alive subject to his tradition, culture and the religion, which he professed. The society should not be permitted to do any disgrace to the deceased.

Deceased persons do have some rights, if not all, which can’t be detached from them. Salmond has also rightly pointed out that “There are three things in respect of which the worries of living person extend even after their death. Those are his body, his reputation and his property.” By analysing different judgments and statutes, we have come to the conclusion that the following rights have been granted even to adeceased person in the Indian context:

Right to a Decent Funeral

Back in 2002, an important issue was raised in the Supreme Court as to the rights of deceased to have a decent funeral as per their religious belief and the obligation of the State towards homeless people, dying on the roads, (Ashray Adhikar Abhiyan v. Union of India, AIR 2002 SC 554). While the Court refused to issue any direction, it did acknowledge that the Government should take all the possible steps to give a decent burial to the unclaimed dead bodies found on the road. Similar directions were given in 2013, when the issue of disposal of unclaimed bodies found in railway areas came to Supreme Court. 

In S.Sethu Raja v. The Chief Secretary, Madras High Court has also ruled that “The right to life has been held to include the right to live with human dignity. By our tradition and culture, the same human dignity (if not more), with which a living human being is expected to be treated, should also be extended to a person who is dead. The right to accord a decent burial or cremation to the dead body of a person should be taken to be part of the right to such human dignity” . In Vikash Chandra v. Union of India, a petition was filed regarding the undignified disposal of the dead bodies by Patna Medical College and Hospital in a way that these dead bodies were thrown into the Ganges River without even stitching Post-Mortem operation opening. The Bihar High Court held that it is expected from the Hospital Staff and State Officials that the disposal of unclaimed and unidentified dead bodies are done in accordance with the law with the utmost respect to the dead and in case it is verifiable the last rites should be in accordance with known faith of the deceased.

Apart from this, it is seen that during the natural or biological disasters, when the unidentified dead bodies keep on piling up, there is a prevalence of using common graves and mass cremations for the rapid disposal of dead bodies without preserving the individuality of the deceased. However, the right to decent burial has been considered so intrinsic to the human dignity that even during the time when there are massive numbers of unidentified dead bodies that need to be disposed of, the Government is required to give all the deceased person, a dignified disposal according to their religious beliefs, cultural values, ethnic and psycho-social needs, according to the National Disaster Management Guidelines.

The ongoing pandemic, COVID-19 has created some problems concerning the rights of the dead body. Incidents of mishandling the dead bodies are coming up with families either keeping infected dead bodies at home to pay their last respect or completing refusing to accept the dead bodies. Recently, a Delhi crematorium refused to perform the last rites of woman who died of the ongoing pandemic fearing infection. Furthermore, when a doctor, died of COVID infection, his burial created a law and order situation, which the Madras High Court took cognizance of.

More and more petitions are being filed in the Courts regarding safe management and disposal of COVID infected bodies. One petitioner before the Supreme Court has sought a stay on burials of COVID infected bodies near his residential area, contending that the present unprecedented health situation should take precedence over the religious rights of the deceased’s family members seeking to bury the deceased at the subject cemeteries. The petitioner claimed that he has legitimate fear of the spread of the Covid-19 virus through the soil to the nearby populace. However the existing scientific research doesn’t support his claims. 

According to the COVID-19 (Guidelines on Dead Body Management) issued by Ministry of Health, if standard precautions like hand hygiene, protective personal equipments are taken, the virus is unlikely to spread. While, the religious rituals such as reading from religious scripts, sprinkling holy water and any other last rites that do not require touching of the body have been allowed, large gatherings at crematoriums/burial ground, are prohibited. Experts have also said that cremation should be preferred for the complete elimination of chances of infection. In cases of cremation, families should switch to electric or CNG-run crematoria. Similarly, if burial is requested, then it should be done only in a thick and airtight coffin. 

Right to Die with Dignity:

Whenever ‘right to decent burial’ is violated, it can be said that ‘right to death with dignity’ is infringed too. On 9th March 2018, a 5-Judge Bench of the Supreme Court in the celebrated case of Common Cause v. Union of Indiawhile dealing with the case of euthanasia, set the stage for acknowledgement of constitutional right to die with dignity. It was contended that right to die with dignity is inseparable and inextricable facet of right to life with dignity. While adverting to the situation of a dying man who is in a persistent vegetative state, the Judges pointed out that his process of natural death had already begun and since the death is imminent and certain, he has a right to die with dignity. In this regard, the Court held that 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. And if we interpret this ‘dignified procedure of death’, it will extend to dignified disposal of the deceased as well, which has been very well done by the Court in other judgments. In this case, 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. 

The above mentioned rights can be enforced at the instance of the legal representatives of the deceased.

The authors are III year B.A.LLB students of National University of Study and Research in Law (NUSRL), Ranchi.

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