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Denial of Burial Rights to the dead due to Coronavirus: is it a violation of Article 21 of the Constitution of India?

Dated: June 13, 2020

                                                                                                                                                          - By Megha Bhatia

“Because even a dead person, is a potential carrier. They die alone, isolated from loved ones.”

The COVID-19 pandemic posed not only a health, safety and financial problem, but also a lack of confidence in the final human path. The right to life is a broad concept which states that no person shall be deprived of his or her life or liberty or property, except in accordance with the procedure laid down in the law. In the first instance , in the case of Kharak Singh v. State of U.P., the Supreme Court, in 1963, considered the scope of Article 21 to be based on a reference to the treatment of corpses in the following words – “it is every kind of deprivation that is hit by Article 21, whether such deprivation is permanent or temporary.”

On the basis of this concept, the Madras High Court ruled that the basic right to life secured under Article 21 requires the right to proper burial or cremation. Tamil Nadu took a move forward by releasing an ordinance enforcing a three-year jail term on those found to be in breach of the same.

Should the body of a Covid-19 victim be cremated or buried?

Funeral rites of those who succumbed to Covid-19 have been the subject of controversy, at least in China, Sri Lanka and also in India. The question of “should the body of a Covid-19 victim be cremated or buried” still remains a question lacking valid authority from authorities.

The right to a decent burial is recognised as an aspect of the Right to Life and even in such a pandemic situation this right cannot be taken away from any individual, the High Court of Bombay said, while maintaining that the Mumbai civic body had the power to appoint any cemetery to dispose of the bodies of COVID-19 patients. 

“Right to a decent burial, commensuration with the dignity of the individual, is recognized as a facet of the right to life guaranteed by Article 21 of the Constitution. There is, thus, no reason as to why an individual who dies during this period of crisis because of suspected/confirmed COVID-19 infection would not be entitled to the facilities he/she would have otherwise been entitled to but for the crisis,” the division bench of Chief Justice Dipankar Datta and Justice S.S. Shinde said in its order dismissing a bunch of petitions challenging the April 9 circular issued by the BMC appointing 20 burial grounds and cemeteries in the city to dispose of bodies of persons who died as a result of COVID-19.

Addressing fears of people that infection spreads from dead bodies, one doctor has clarified, there is a protocol covering the cremation or (deep) burial of an infected person at about 12 feet.

“The virus is very fragile and disintegrates with soap and water. It cannot live in a dead body for more than two hours,” he said. “Just as people are afraid, doctors are afraid too,” he said, adding that no one wants to lose their life or harm anyone.

Guidelines by Ministry Of Health and Family Welfare

Even though there is a subsisting right, people dying as a consequence of the pandemic have been deprived their constitutional right with the impeding concern that the virus that spread through the burial or cremation of the corpse. In doing so, the Ministry of Health and Family Welfare issued guidelines on the management of dead bodies to safeguard the rights of human bodies, which are in line with the guidelines issued by the World Health Organization (WHO). The guidelines also allow relatives of the deceased to see the body, if they are subject to adherence to anti-infection control practices, including total physical contact restraint with the dead body.

State government directives overriding religious practices on dead bodies can in no way be called racist, but it is a proportionate step to curtail diseases and deaths under the excuse of the outbreak, while at the same time maintaining the general health and economic well-being of India. It will be pertinent to take note that this is transient and is the modus Vivendi of negotiating the difficult waters of COVID-19, independently but together. 

Request to Supreme Court to take “Sou Moto” Cognizance

The guidelines issued by the Health Ministry are not enough to cope up with this problem as the cases of deaths due to Covid-19 are increasing day-by-day. There is a need for proper implementation of these guidelines for which it is essential that the courts must intervene and took cognizance of this matter.

Former Union Law Minister Ashwani Kumar wrote to the Supreme Court to take suo motu cognisance of news reports on the undignified treatment and disposal of the bodies of COVID-19 patients, saying the acts amounted to a “grave infraction of the citizen’s right to die with dignity”. Mr. Kumar, a Senior Advocate of the Supreme Court, stated that the fundamental right to die with dignity includes the right to decent burial or cremation.

He related to a news article on an elderly man in Madhya Pradesh who had been "chained" to a hospital bed. “The tragic and condemnable sight of a COVID-19 patient being chained to a bed in a hospital in Madhya Pradesh and another sight in Puducherry of a dead body being thrown in a pit for burial have shocked the conscience of the Republic committed to human dignity under the Constitution, which recognises dignity as a core constitutional value at the pinnacle in the hierarchy of non-negotiable constitutional rights,” Mr. Kumar wrote in his letter to the Chief Justice of India and judges of the Supreme Court.

The Senior Advocate told the court that it was its responsibility to uphold the statute that it had established in previous judgments.

He tried to draw the attention of the Supreme Court to the present situation by highlighting the reports of the bodies “piling up” in hospitals and mortuaries in the capital. “Notified protocols for cremation in the capital city, reported piling up of bodies in hospitals and mortuaries, non-availability of adequate cremation/burial grounds and the reported non-functioning of electric crematoriums constitute... an unacceptable violation of the right to die with dignity,” Mr. Kumar wrote.

      Now, it is time for the court to take some action and giving a ruling that favours everyone.