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Burial or Cremation: Uphold the Rights and Dignity of the Dead amidst Covid-19

Introduction

While the nations are still in the phase of rehabilitation and repair from the catastrophe caused by first wave of pandemic, we are struck with the anticipated yet unprepared second wave which has led to a tsunami of infections with high mortality rates. As of May 09, 2021, globally more than 32 lakh people have died due to Covid -19 pandemic whereas India has recorded more than 2 lakh deaths. There has been a huge scarcity of crematoriums and burial grounds for the safe disposal of the deceased victims and so mass cremations and improper handling of the dead is taking place in our country with utter disregard to its repercussions thereby violating the dignity of the dead.


In the past few days there came a report that several dead bodies suspected to be affected by covid-19 were found floating on the banks of ganga in Bihar and Uttar Pradesh. Earlier the Delhi High Court expressed its anguish over media reports which showed the inside of Covid -19 mortuary of Lok Nayak Hospital, Delhi where there were 108 bodies ; all 80 racks were full and 28 bodies were left on the floor piled up on top of each other. In an infelicitous incident, the body of the doctor, who suffered a heart attack on account of covid-19 infection, was taken to Christian cemetery at Kilpauk, Chennai. But the residents protested against the burial fearing that the deadly virus would get spread and stalled them thereby attacked the ambulance which was carrying the body. Later his body was buried in Velangadu.


National Human Rights Commission (NHRC) has raised concern over the indifferent attitude and issued advisory on upholding the dignity and protecting the rights of the Dead on account of huge number of deaths during this second wave and challenges in management of the bodies.

Article 21 enshrines right to life and personal liberty of an individual. Right to life includes the last right of the dead i.e. a decent burial according to his/her religious rites which needs to be protected in lines with the safety protocol issued by the government. Unnecessary apprehension of the public regarding spread of virus from the cadaver of suspected/confirmed covid-19 infected individual should be removed by creating awareness of its nature of transmission.


Judicial precedents

Article 21 of the Constitution of India provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law. The term ‘procedure’ has been read into ‘due’ procedure by the Supreme Court in Maneka Gandhi v. Union of India which means that the procedure must be fair, just and reasonable. Over the period of time, the Supreme Court has included many rights within the term ‘right to life’. The Supreme Court in Kharak singh v. State of Uttar Pradesh quoted Field J. (In Munn v. Illinois) who defined ‘life’ as something more than mere animal existence and it prohibits mutilation of the body or amputation of an arm or leg or causing damage to any organ of the body whereby the soul of the dead communicates to the outer world.

In P.Rathinam v. Union of India, the Supreme Court held that, ‘right to life’ as in article 21 refers to live with human dignity and also includes the tradition, heritage and culture of the person concerned.


In Parmanand Katara (pt.) v. Union of India, the Apex Court heard a petition that challenged the method of execution of death sentence under the Punjab jail manual as inhuman and violates the right to dignity. The Court held that the method involving suspension of the body for half an hour after his death as a violation of his right to dignity. They further held that right to dignity and fair treatment under Article 21 of the Constitution of India is not only available to a living man but also to his body after his death.


Further in S. Sethu Raja v. The Chief Secretary, the Apex Court directed the authorities to bring the body of petitioner’s deceased son from Malaysia and held that:

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”.

They further held that a decent burial/ cremation of a deceased person is part and parcel of the dignity which is guaranteed to a living person.


Right to decent funeral can be traced under Article 25 of the Constitution which guarantees freedom of religion to all persons in India. It provides that subject to public order, morality and health and other provisions all are equally entitled to freedom of conscience, practice, profess and propagate religion in India.


Penal provisions protecting the rights of the deceased person under IPC

  • Section 297 prohibits trespass in any place set apart from the performance of funeral rites or as a depository for the remains of the dead. It also punishes offenders who offers any indignity to any human corpse, or causes disturbance to any persons assembled for performance of funeral ceremonies with an imprisonment for a term which may extend to one year or with fine, or with both.

  • Section 404 penalizes dishonest misappropriation of property possessed by deceased person at the time of his death. It’s a Non Cognizable and bailable offence.

  • Section 499 (1) explanation defines defamation as to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives. The offender can be punished with a simple imprisonment for a term which may extend to two years or with fine or with both.

  • Section 503 explanation defines criminal intimidation as whoever threatens to injure the reputation of any deceased person in whom the person threatened is interested and shall be punished with an imprisonment for a term which may extend to two years or with fine or with both.

However, the law nowhere defines the term ‘deceased person’ or any other associated word which may lead to confusion when used in broader sense of interpretation and may prolong administration of justice.


The operative legal mechanisms in India to combat this pandemic like Epidemic Diseases Act 1897, Epidemic Diseases Amendment Act 2020, Disaster Management Act 2005, National Disaster Management Plan 2019 have not anywhere mentioned on the safe and proper disposal of the succumbed people to the pandemic. The guidelines on management of dead bodies issued by the Ministry of Health and Home Affairs are dealing with these aspects yet those are not being followed adequately owing to the piling up of dead bodies.


International guidelines and regulations

The infringed rights of the Dead have been reassured by various international instruments in the context on Covid-19


General guidance for the management of the Dead - ICRC forensic unit

The International Committee of Red Cross (ICRC) was established in 1863 and involve in helping the people worldwide who are affected by conflict, armed forces and war. They help during emergencies and promote international humanitarian law and its implementation in national level. They released a document providing guidance in management of the Dead.

Part I of the document deals with recommendations in handling the dead bodies of suspected/confirmed novel corona cases to practitioners, managers, planners, professionals and technicians. There was specific mention regarding handling the remains of the dead and handing them over to the relatives. Part II of the document “Protracted Response to Increased Deaths from Covid-19: A Preparatory Guideline for Mass Fatality Response Plan” deals with directives to the authorities of various ministries of the State and also provides guideline for recovery, transportation, storage and proper handling of dead bodies and issuance of death certificate. It also included viewing of dead bodies by families, burial, cremation etc.


Interim Guidance by WHO on Infection Prevention and Control for the safe management of a dead body

The document focuses on guidelines for different stages of handling the covid-19 infected dead bodies which can be attributed to various stakeholders. It includes preparing and packing of the body for transfer from a health facility to an autopsy unit, mortuary, crematorium or burial site. Safety protocols to be followed by the technicians during autopsy, environmental cleansing, do’s and don’ts during funeral and provides that the safety and cleansing equipment shall be kept ready by the public health authorities.


Technical Report by European Union on Considerations related to the safe handling of bodies of deceased persons

Corollary to the above said documents this document also deals with management of the bodies of deceased persons due to suspected or confirmed covid-19 cases. The guidelines are addressed to the public health authorities of all the member states of EU and the UK.

Recommendations of NHRC

The NHRC issued an advisory to Secretaries of Union Home Affairs, Health and family welfare ministries and to the Chief Secretaries of the States on prevention of mismanagement of covid-19 affected bodies thereby upholding their rights and dignity.

  • The NHRC recommended the government to enact a legislation to protect the right of the dead and establish temporary crematoriums to reduce the delay in performing last rites.

  • They advised to sensitize the staff of Crematoria and burial grounds to ensure dignity while handling bodies.

  • Further they advised to provide those staffs adequate protective equipments like PPE, apron, goggles, mask, gloves, shoes etc. so that they can work efficiently without any fear of getting infected from the affected cadaver and the local government or municipal corporation can perform the last rites if there is no one to repatriate the body according to the deceased’s religious or cultural factors.

  • They said that there should not be piling up of bodies at any point of transportation and also mass cremations and burials should be avoided as it disrespects the dead.

  • They said that the information regarding the dead or missing persons should be handled properly and confidentiality of the clinical records should be maintained especially if they are stigmatized like HIV cases.

  • They also suggested that the prices of hearse or ambulance services should be regulated.

  • They emphasized that since the staff of crematoria, mortuaries and burial grounds are working round the clock they should be paid fair wages to compensate their hard work. They should be vaccinated on a priority basis as they are among the frontline workers during this pandemic.

  • They further added that the hospitals should prohibit deliberate retainment of bodies of deceased till payment of medical bills and ensure timely and decent burial.

  • Religious rituals that do not require touching of the dead like reading of holy scripts, sprinkling of holy water can be adopted and electric crematoria should be encouraged as burning of pyres causes health hazard due to smoke and pollution.

Conclusion

The alarming surge in the mortality rate caused by this second wave of novel corona virus has revealed the ill preparedness of our health infrastructure to meet such an epidemic and the existing legislative lacunae on safe and dignified disposal of the Dead cannot be overlooked. As discussed earlier, right to life can be expanded to include dignity to the Dead which means decent burial or cremation according to his/her tradition, culture and religion. Thus the State should take measures to prevent dumping of bodies and mass cremations/burials as it increases the possibility of the spread of virus due to poor handling and violates the rights of the Dead. Temporary electric crematoria should be set up to avoid piling up of dead bodies. Awareness and sensitization programs should be imparted by the government to the technical staffs and other frontline workers who are handling the dead bodies regarding preparation, packing, storage, transportation, cleansing of the dead bodies with due diligence thereby ensuring the rights and dignity of the Dead. Safety protocols which are framed by the ministry of health and family welfare should be implemented efficiently.

References

  1. https://www.mohfw.gov.in/pdf/1584423700568_COVID19GuidelinesonDeadbodymanagement.pdf

  2. https://ndma.gov.in/sites/default/files/PDF/ndmp-2019.pdf

  3. European Centre for Disease Prevention and Control, Considerations related to the safe handling of bodies of deceased persons with suspected or confirmed COVID-19 (March 23, 2020), available at: https://www.ecdc.europa.eu/sites/default/files/documents/COVID-19-safe-handling-of-bodies-or-persons-dyingfrom-COVID19.pdf

  4. https://main.sci.gov.in/judgment/judis/3641.pdf

  5. https://thedailyguardian.com/a-dead-persons-rights-understanding-the-rights-that-transcend-the-living-realm-amidst-covid-19-pandemic

  6. https://www.icrc.org/en/document/humanity-after-life-respect-and-protection-dead

  7. https://www.thehindu.com/news/national/uphold-the-dignity-of-the-dead-says-nhrc/article34559783.ece

  8. https://blog.petrieflom.law.harvard.edu/2020/05/20/covid19-policies-constitutional-violations/

  9. https://www.deccanherald.com/national/dont-allow-hospitals-to-retain-bodies-for-not-settling-bills-ensure-decent-cremation-nhrc-985861.html

  10. https://globalfreedomofexpression.columbia.edu/cases/singh-v-uttar-pradesh/


By Jai Pradha T MA

Law Centre I, Faculty of Law

University of Delhi

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