Author: Lenna Joshy, Student at Government Law College Thrissur, Kerala.
Co-Author: Savio P Xavier, Student at NMIMS School of Law, Navi Mumbai, Maharashtra.
The major objective of law is that to bring peace and stability in the society. Prima facie laws are for the living individuals, but when we try to look it on very closely we can understood that there are laws for the dead. The fundamental rights are the rights which are important for the intellectual, moral and spiritual development of the individual. According to the Constitution of India, there we can see some rights that deals with ‘right to have an decent funeral’. Also in Indian Penal Code (IPC) we can see some provisions which deal with the offence related to funeral of corpses.
Covid-19 which originated in Wuhan, China is a highly infectious disease which affected the entire globe, due to which WHO declared this disease as a World Pandemic. In India alone by the end of 2020 10.3M active cases and 149K death reports had been reported. from this data alone we can understand how contagious and dangerous the disease has turned out to be.
While taking into consideration the current scenario of covid-19, there are a number of death reports in a very single day. This became a burden for the government / medical officials to provide a fair and decent funeral. but in the light of the present situation another question arises, which is , “Can a dead body of an infected patient also transmit the corona virus?” If it can, what is the best way and the safest manner to dispose of the body.
In this article we are going to check whether right to have an decent funeral has been violated especially during this Covid-19 period and what are the legal implications associated with the same.
RIGHT TO DECENT FUNERAL UNDER INDIAN CONSTITUTION
The Supreme Court while interpreting the right to dignity and fair treatment is a fundamental right under Article 21 of the Constitution of India, and is not only available to the living individual but also for this body after his death.
Such a view was first recognised by the Supreme Court in a conflict of public interest. In the case of Bandhua Mukti Morcha v Union Of India & Others, 1983, Article 21 of the Constitution guarantees the right to live with human dignity. In addition, in the case of Common Cause (A Regd. Society) v Union Of India, 2018, it was argued that the right to die with dignity is an inseparable and inextricable facet of the right to live with dignity. In Ashray Adhikar Abhiyan v. Union of India, the court held that it was the duty of the State to cremate the deceased according to their religious beliefs.
The Supreme Court of India, along with many High Courts has clearly accepted that a dead body(human corpse) must be given a fair treatment at the time of funeral, and the process must be done with appropriate dignity. For further read one may also refer to Pt. Parmanand Katara vs Union Of India & Ors, 1989.
RIGHT TO DECENT FUNERAL UNDER INDIAN PENAL CODE
Under section 297 of the Indian Penal Code, it is provided that one who interferes in this procedure of decent funeral shall be liable and this section also includes trespassing on funeral places,which is clearly prohibits irreverence to dead bodies.
Generally, Trespassing means any violent or injurious act and entering into a place where, the funeral rites are performed or as a depository for the remains of the dead or offers any indignity to any human corpse or causes disturbance to any other persons, who are assembled for the performance of funeral ceremonies and with an intention to wound the feelings of any person.
Recently the Madras High Court in a case of a doctor, who got died due to COVID-19 infection, where a large mob assembled and opposed the funeral of the body had observed that “the scope and ambit of Article 21 includes the right to have a decent funeral”, the court also invoked and highlighted Section 297 of IPC.
UNLASHING THE COMMON MYTH
Lets try to solve a misunderstanding regarding cremation of Covid-19 dead bodies. “Can the dead bodies transmit corona virus? The answer is no. According to a WHO report, dead bodies are generally not infectious, except in cases where the cause of death is hemorrhagic fevers (such as Ebola, Marburg) or Cholera. Cadavers do not generally transmit disease from the dead body to another person. There have been instances across the globe, like in Indonesia, where citizens refused nearby funeral of the deceased people who had unfortunately lost their lives by being infected with COVID-19 virus. Some protestors blocked the roads of the capital city, Jakarta, to prevent the dead bodies from being transported to cemeteries.
With the arrival of the novel coronavirus, the process of funeral and cremation has become complicated. There are religions where the body needs to be washed before the funeral takes place. However, due to the safety protocols countries like Malaysia have released advisories to replace the washing of the dead body with just a symbolic ‘cleansing’ using purified sand or dust over the body bag in which the body has been placed.
Thus, Funeral and Cremation are both safe. In Funeral the body is sealed, and it takes around 7-10 days for the body to decompose and within 3-4 more days, the body fluids also dry up. As of now, there have been no cases where the funeral of a corpse had caused the groundwater to infect and further spread the virus.
TEST OF PRIORITY
It is important to test the priority between public health and religious belief. i.e., Does the right to bury dead bodies form a part of the ‘right to religion’ under Article 25 of the Indian Constitution?
According to Article 25 of the Constitution talks about the right to freedom of conscience and the right to free profession, practice and propagation of any religion, subject to public morality, order and health. In the case of Varied Porinchukutty v. State of Kerala and Ors, 1996, it was held that religion also includes the practices which are followed by a community as part of the religion. This means that the different modes of disposing of a body followed by different religions form an integral part of their right to exercise their religion and faith.
For instance, amongst most Hindus, the disposal of a deceased person’s body is done by a cremation, however, in the case of Muslims and Christians, the same is made effective via funeral of the dead body. There are many sects/religions where the funeral of the bodies takes place only at the consecrated places, ensuring their fundamental right to religion as per Article 25 of the Indian Constitution.
There is another point of contention by those who are of the view that the dead bodies of COVID-19 infected patients shall be disposed of as per the religious cultures and norms only. Their point is that scientific research or studies say that infection cannot spread through the dead bodies, provided that proper handling and safety is ensured. Addressing this point of contention, the Supreme Court in its Special Leave Petition said that one must understand it is imperative to be ‘safe rather than sorry’ in these extraordinary times of crisis, where we still don’t’ have any vaccine for this highly contagious virus. According to WHO, there is no key evidence until now, which could prove that a person can get infected from the dead bodies of COVID-19 patients. It also said that the dignity of the dead person and its cultural and traditional practices must be protected and respected throughout the process, and advised against hasty disposal of the dead bodies. For countries where the death rate has increased rapidly, there have been major concerns regarding the funerals of COVID-19 deceased patients, overwhelming the funeral and cremation grounds across the globe. Also, if we take a look at the different governments around the world, we can learn about the advisories being released on ‘cremating’ the bodies of the COVID-19 deceased person, rather than burying them.
Looking at the current unprecedented crisis due to novel coronavirus, the health situation ought to take preference over the religious rights of a deceased person and the rights of the family members of the deceased person who are trying to seek permission to bury the body at the subject cemeteries.
After a thorough understanding and reading of Article 25 of the Indian Constitution also, we can also point out here that the right to religion is subjected to public health, and thus, in this priority test, Public Health shall take priority over Religious Practices. However, the state must try its level best to ensure that it dignifies the disposal of corpses the same way it respects a human being. In other words, every human being is entitled to a decent disposal of his/her body in accordance with the cultural norms and traditions.
GUIDELINES REGARDING FUNERAL, CREMATION OF DEAD BODIES
- WHO Guidelines
On March 24, 2020, WHO released interim guidance titled “Infection Prevention and Control for the safe management of a dead body in the context of COVID-19”. The guidance was released for everyone who managed the health care facilities and the religious and public health authorities who came into contact with the suspected, confirmed or dead COVID-19 patients. The recommendations are supposed to get revised in case there is some major evidence which comes into the light.
Lets look at the most relevant section of the guidelines which were given by WHO with regards to Funeral:
- People who have died from COVID-19 can be buried or cremated as per their religious norms and traditions.
- The family members and friends may view the dead body once it is ready for funeral. However, they should not touch, or kiss or come into close contact with the body. After viewing the body, they must wash their hands thoroughly using soap and water.
- People who are involved in the task of placing the body in the grave or cremating it should wear gloves and a mask. Also, once the funeral or cremation is over, they must dispose of their gloves (properly) and wash their hands thoroughly using soap and water.
Apart from these, there are some other guidelines given by WHO with regards to funeral by family members or where the ill person dies at home.
- Anyone, be it a family member, or a religious leader who is preparing (for instance, cleaning, dressing the body, trimming nails, or shaving) the body of the deceased person, must perform all the hygiene and sanitation practices during and after the funeral takes place.
- Ministry of Health Guidelines
The Ministry of Health also gave consideration to the World Health Organisation (WHO) guidelines on “Infection Prevention And Control of Epidemic and Pandemic-prone Acute Respiratory Infections in Health Care”. The same has already been discussed in the previous sub-heading. The Health Authorities of India is constantly stressing on the importance of the use of personal protective equipment which is in accordance with the standard precautions. These will help in protecting a person and avoiding any type of direct contact with the body fluids of the deceased person, while the procedure of disposing of the body is taking place, or while moving the corpse from the isolation room or area of the health care facility.
Here are some key pointers from the “COVID-19: GUIDELINES ON DEAD BODY MANAGEMENT” which were released by The Government of India Ministry of Health & Family Welfare Directorate General of Health Services (EMR Division):
- Embalming (preserving human or animal remains by treating them with chemicals to forestall the decomposition) of the dead body is not allowed.
- Autopsies should be avoided.
- In the case of the Autopsy procedure being performed due to some special reason, then proper infection prevention control practices must be adopted.
- The mortuary staff involved in the process of handling the COVID-19 infected dead body should observe standard precautions.
- These dead bodies must be stored in chambers with an approx temperature of 4℃.
- Viewing of the dead body by unzipping the face end of the body bag (by the staff using standard precautions) may be allowed, for the relatives to see the body for one last time.
- Important: The Crematorium or the Funeral ground staff must be sensitized about the fact that COVID-19 does not pose any additional risk.
- Large gatherings at the crematorium/ funeral ground should be avoided as a social distancing measure as it is possible that a close family contact may be a suspect of COVID-19 virus or symptomatic to it.
- Important: The ash does not pose any risk and can be collected to perform the last rites.
- Religious rituals such as reading from religious scripts, sprinkling holy water and any other last rites that do not require touching of the body can be allowed.
After closely analyzing these guidelines and frameworks one can come to the conclusion that the scope of the guidelines was also to clear the myth and false information regarding safety issues involved in the process of funeral or cremation.
THE REAL “PRIORITY”
The corona virus not only presented emerge a health and economic crisis , it is also put crisis upon faith in the final journey of humans. The right to decent funeral has denied. Hence, there arises an important need for enactment of a law in which it allows people to provide the establishment of funeral grounds and public crematoriums, and that will greatly helps to ensure that whether proper maintenance or management is taking place in these places,the existing guidelines of the Ministry of Health and other State Authorities are inadequate and outdated too. The guidelines which we studied earlier in this article, by the Ministry of Health were released back when there were only 2 deaths in the country. This means there are no fresh guidelines or frameworks which would take into consideration the fact that as of now there have been 149k deaths across India.
The right to decent funeral is a part of right to life under Article 21 of the Constitution of India. In India each citizens entitled to have a duty to hand out a decent funeral or cremation to a patient who was infected with COVID-19 virus. According to the studies and research, the funeral and Cremation of the Covid19 effected persons bead bodies are of safe approaches. The people who are involved in such funeral and cremations are taken using safety equipments for their self protection. Hence it is very clear that there is no point to doubt to debate about whether funeral is a safer practice or cremation. Rather, it is needed to strengthen the guidelines that is issued by the WHO and local health authorities.
The right to religion is provided in Article 25 of the Constitution and is subjected to Public Health. Thus it is important to note that Public Health shall take priority over Religious Practices.
This doesn’t mean that the state can compromise with the fundamental right guaranteed to the citizens of our country. WHO and Ministry of Health Guidelines must be read, and awareness should be there regarding these frameworks. These guidelines are structured in a way which ensures a balance between the rights of people and insurance of public safety and public health. The existing guidelines are now outdated and don’t take into consideration the current death toll in the country, which makes it ineffective to some extent. Hence, there arises an need for enactment of laws and facilities that will ensure proper management of funeral or crematoria places.
 Parmanand Katara v. Union of India & Ors, 1989 AIR 2039, 1989 SCR (3) 997