This Research Paper is written by Mashish Saxena, a Third Year B.A LL.B (Hons.) Student at PES Modern Law College, Pune.
ABSTRACT
Novel Coronavirus, the pandemic, has influenced a few viewpoints which incorporate organic and efficient angles into it, which have been examined in the article. The principle parts of life for an individual whether he is alive or being dead which matters the most are social and lawful perspectives. What’s more, the more significant among them are the nobility and privileges of the perished and their families-have so far got little consideration.
The law’s treatment of human remains has consistently been commenced on two things: regard for the dead and general well-being worries around substantial rot and danger of ailment. And keeping in mind that everything potential advances will be required to maintain regard for the dead in pandemics the accentuation unavoidably moves to general well-being.
This communication discusses restriction and violation of the rights of the deceased and death with dignity and their privileges to carry out funerary practices and rituals during the pandemic caused by the COVID-19.
INTRODUCTION
COVID-19 is a highly contagious infection with no proven cure. To date, we are unable to find a cure for the infection. At present, it has become the pandemic and due to such an outbreak, many rights of the people are being violated which includes death rights. As per the present position of law, we know the exact Article for the right to life that is Article 21 of the constitution which states that no person shall be deprived of his life and personal liberty except according to a procedure established by law. And every LIVING HUMAN BEING gets innumerable rights almost under every law.
But as we heard the term LIVING PERSON one question came across in our mind: whether the rights equally been given to a DEAD person in Article 21.
The answer is YES, the rights have been given to the person after death as well. High Court of Allahabad in the case of Ramji Singh @ Mujeeb Bhai v. The State of U.P. [1]has ruled that the word and expression ‘person’ in Article 21 includes the dead person in a limited sense and the right to live with dignity should be extended in such a manner that his dead body is given the 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.
Death with dignity is possible after the law was made for it from the case of euthanasia common law v. Union of India, while dealing with the case of euthanasia it set the stage for acknowledgment of the constitutional right to die with dignity.
Even though these statutes have led us into ambiguity, the Supreme Court and High Courts of India has made it clear that there are certain rights that extend to people even after their death.
CURRENT SCENARIO: GUIDELINES BY GOVERNMENT
Over the last few weeks, India has seen a steep rise in the number of cases and subsequent death. Many people’s death rights have been violated, basically, death with dignity, in particular, is being infringed. As can be seen that during lockdown only 4-5 people are allowed in the funeral ceremony. But the government gave some relaxation in unlocking, now 20 people are allowed to gather along with social distancing in the final ritual ceremony.
Patrick Henry’s exhortation — “Give me liberty or give me death” — appears as an aberration. We learn as Justice Robert Jackson had it, that a constitution cannot be treated “as a suicide pact.”[2]
The ongoing pandemic, COVID-19 has created some problems concerning the rights of the dead body. In Indian rituals, there are many things to do before burning the body, so it can be mixed into five TATTVAS. But during a pandemic, it was impossible to touch or go near to a body, so it leads to incidents of mishandling of dead bodies. Which is violating the right of death rights along with death with dignity under Article 21.
Hospitals under guidance by the government in India are not allowed to hand over the dead bodies of the deceased by Corona to the families because even a dead person is a potential carrier. They die alone, isolated from loved ones. Recent cases show that there is no dignity even in death.
According to the COVID-19 (Guidelines on Dead Body Management) issued by the Ministry of Health[3], if standard precautions like hand hygiene, protective personal equipment are taken, the virus is unlikely to spread. While 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 grounds 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.
The effect of the outbreak can be seen in many countries but Italy is one of the most affected countries due to it the guidelines by their government are that they have to ban funerals because of the coronavirus crisis. So, for many, the virus is now robbing families of the chance to say a final goodbye.
Anyhow the pandemic is taking away from the deceased along with families there right to die with dignity.
DEATH RIGHTS: CASE LAWS
Along with Article 21 of the Indian constitution, there are case laws which give the deceased to die with dignity:
A. Right to a Decent Funeral:
i) Back in 2002, an important issue was raised in the Supreme Court as to the rights of the 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[4]. 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 bodiesfound in railway areas came to the Supreme Court.
ii) In Sethu Raja v. The Chief Secretary, Madras High Court[5] 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”
iii) In Vikash Chandra v. Union of India[6], 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.
B. Right to Die with Dignity:
i) Whenever the ‘right to decent burial’ is violated, it can be said that the ‘right to die 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 India, while dealing with the case of euthanasia, set the stage for acknowledgement of the constitutional right to die with dignity. It was contended that the right to die with dignity is an inseparable and inextricable facet of the right to life with dignity. While advertising 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. The 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, the right to die sans pain and suffering was considered fundamental to one‘s bodily autonomy and integrity, similarly the right to decent burial also forms an important facet of Article 21 of the Constitution.
Also, In India, section 297 of the Indian Penal Code protects the rights of the deceased from any form of indignity[7]. This includes acts that cause disturbances to people assembled for funeral ceremonies. However, several reports have emerged in the media of disregard for the legal code. Local communities have restricted the transport of dead bodies for funeral processes, have resisted burials and cremations, and have often resorted to mob violence against the bereaved. There have even been reports of family members of the deceased refusing to perform funerary rituals for fear of transmission.
C. In other Countries the Rights for Dead People:
Reports of disregard for the dignity and respect for the deceased and their families have emerged all over the world, including developed countries.
In the USA they are burying unclaimed bodies in unmarked mass graves at Hart Island,
Parque Taruma cemetery in Brazil reported that mass graves “stacked in three-high piles” dead bodies are being buried, and Guayaquil in Ecuador bodies being piled at the mortuary, as well as the disappearance or misplacement of multiple bodies.
The International Committee of the Red Cross (ICRC) has developed the ‘General Guidance for the Management of the Dead related to COVID-19’, with the aim of safeguarding the fundamental humanitarian principles ensuring the dignity and respect of the deceased from COVID-19. In addition, the document provides directions to protect against disappearances and the development of mass-fatality response plans for COVID-19 deaths.
CASE IN POINT
The sudden increase in the death rates, the countries reported high cut off from the burial and cremation of the dead bodies by the families and by the hospitals in the pandemic. The bodies are being said to be dumped in the pits. People not coming forward to help in normal death cases also believing it to be connected with the life-taking virus.
A. Bellari in Karnataka recently reported that bodies of COVID patients were seen being dumped inhumanly in a pit.
B. Yadgiri in Karnataka witnessed a similar disrespectful case. But things haven’t changed.
C. Ganjam district in Odisha reported that a man who was suspected to have died due to COVID-19. None of his relatives’ ventures near the body and later his brother and sister dragged the body and buried the body which was dug by JCB.
D. In Punjab, Padma Shri winner Nirmal Singh Khalsa died of the disease in April. His cremation was also stalled as people feared that the smoke raised during cremation can infect villagers.
E. Let’s take you to Iran, where both- the death toll and the size of mass graves – are expanding. The mass cemetery of Qom can now be seen from space. The burial here is not in accordance with the Islamic tradition. In Iran, corpses are traditionally washed with soap and water before burial. But in Qom, the fear of the spreading coronavirus is preventing medical workers and the kin of the deceased from observation tradition.
It can be safely concluded that Coronavirus has made death just a number. As the above cases point out, it has not only killed people but has also killed its dignity.
Recently, Prakasana district principal judge P. Venkata Jyotirmayi has brought up that the right to dignified funerals is a fundamental right of every human being. The inhumanity and ignorance of the people in preventing the cremation of the bodies of the deceased. Every human being is entitled to a decent farewell as per his/her religious rites as per Article 21.
According to her, families of the victims can approach the DLSA according to them, and do the funeral of the bodies in a humble and human way befitting human dignity. She urged the public to ensure a dignified funeral to the deceased. She has also mentioned the ruling of the Supreme Court and Madras and Bombay High Court. If the act by the people was a gross violation of the fundamental rights then they can be punished under IPC sec 297, 188, 341, 147and 148. The Supreme Court had held that “right to dignity is not only available to a living man, but also to his body after his death”.[8]
CONCLUSION
The ongoing topic can’t be described briefly at any point of the, until and unless the rights for the deceased along with their death with dignity get the justiciable rights from the judiciary. Because even right now somewhere in the world, a deceased’s rights are being violated in this pandemic. A person lives his life with dignity with rights, so why not provide him with dignity after his death during a pandemic? It’s a big question not only for the Indian government but also for governments all over the world. The COVID-19 global pandemic will challenge rights and legal considerations in numerous and as yet unrecognized ways. In order to cope with the problem that is likely to result in the psychological effects of mismanagement of the dead bodies. A possible solution to these pervasive practices is to ensure the accountability of the authorities so that the dignity and rights of the bereaved are not compromised. This practice can be made possible only after continuous talks and interaction with the authorities for the management of dead bodies as put up by the World Health Organization and the ICRC. The respective governments need to follow such guidelines and circulate the same to the local authorities for the fast and effective solution for the deceased, for their rights and dignity.
[1] Civil Misc. Writ Petition No.38985 of 2004[2009].
[2] A speech delivered at St. John’s Church in Richmond. Virginia, at a revolutionary convention held on March 23, 1775.
[3] https://ncdc.gov.in/showfile.php?lid=500.
[4] Ashray Adhikar Abhiyan v. Union of India, AIR 2002 SC 554).
[5] 2007 (5) MLJ 404.
[6] (2008) 2 PLJR 127.
[7] Central Government Act, India, Section 297 in The Indian Penal Code, Indian Kanoon, https://indiankanoon.org/doc/15048/ .
[8] https://www.thehindu.com/news/national/andhra-pradesh/covid-19-deceased-have-right-to-dignified-funeral judge/article32118261.ece#:~:text=Venkata%20Jyothirmayi%20has%20said%20that,the%20bodies%20of%20the%20deceased.[ JULY 17, 2020 22:57 IST].