SCOPE OF ARTICLE 21 -RIGHT TO HAVE DECENT BURIAL IN COVID-19

This article has been written by Kashish Goyal, a student of Mody University of Science and Technology, Rajasthan. 

The Constitution of India provides the fundamental right to life and personal liberty under Article 21. It states that no person will be deprived of his right except the procedure established by law.

According to Article 1 of the Universal Declaration of Human Rights, all men are born free and equal in rights. Food, clothing and shelter are not just his biggest concern, but now it concerns about the ritual of cremation. Right to decent burial has been recognised as common law, but still, there is no such universal law into existence.

In the context of COVID-19, according to the reports given by the channel named “Puthiya Thalaimurai” had telecasted the news which shows that a 55- year old Dr Simon Hercules was a neurologist, the Managing director of New Hope Hospital in Chennai passed away at Apollo Hospital on Sunday, who had already many health problems, suffered a heart attack and he is suspected that he is contracted with the disease of coronavirus while treatment. After this, his body was taken for cremation to TP Chatram burial ground at Kilpauk, Chennai. As a result, a mob of 40 people reported in the area and refusing for the burial of the doctor on fears that it would spread the virus. After this, the body had to be taken to Velangadu which is three kilometres away but even when JCB machine involved in digging, an angry mob of 70 people gathered from neighbourhood objecting for burial and went to vandalise the ambulance and attacked the officials with stick and stones. Few officials and staff suffered bleeding injuries in the assault. Only after the help of police and after making calls to health ministers body was buried. Such acts were completely unacceptable and legally punishable under Tamil Nadu Private Property Prevention of Damage and Loss Act.

On Monday i.e. 20^th April 2020, The Madras High Court registered a suo moto PIL over the violent incident of doctor who had served humanity in treating coronavirus patients. The bench of Justices Sathyanarayanan and M Nirmal Kumar issue notice to authorities like State Chief Secretary, Secretaries of Home and Health departments, The DGP and the Commissioners of Greater Chennai Police and Corporation. The High Court Pointed out that “While considering the scope of Article 21, it includes right to have a decent burial. As per the above-alleged acts, a person who practised his profession has been deprived of his right to decent burial in a cemetery observed by the division bench”. It is also asserted that article 21 also entails the right to have a decent burial.

The court also gives reference to Section 297 of Indian Penal code, which talks about the punishment for trespass on burial places. Whoever with the intention of wounding the feelings of any person or insulting their religion or offers any indignity to the human corpse or causes disturbance to any person for performing the funeral rites, and further commits trespass in any place will be punished with imprisonment which may extend to one year or with fine or both.

The law in India does not expressly state that burial/cremation of the dead is the responsibility of the state, but it is interpreted by court again and again through cases.

It was also observed in Kharak Singh v. State of Uttar Pradesh & Ors 1964 SCR (1) 332, the Apex court consider the purview of Article 21 and said that this provision prohibits the mutilation of body and amputation of leg or arm or part of any eye or destruction of any other body organ through which the soul communicates with the outer world. It prohibits any type of deprivation whether it is permanent or temporary.

In this case, Francis Coralie Mullin v. Administrator, Union Territory of Delhi, said that right to life is not restricted to a mere animal existence. It includes something more than just physical survival.

In the next case, Ashray Adhikar Abhiyan v. Union of India ( AIR 2002 SC 554), The Supreme Court had upheld the right of a homeless deceased to have a decent burial as per the religious belief and the corresponding obligation of the state towards such people.

It was observed that Right to dignity under the Article 21 of the Constitution is not only available to the living man but also to his body after his death, the above statement held in this case Pt. Parmanand Katara v. Union of India, 1995(3) SCC (248),

The court can also take the guidelines on “Social Stigma associated with COVID-19” that are to be followed in respect of COVID-19 cases. Health ministry, joint secretary, Lav Aggrawal on Tuesday said about the guidelines for the management of bodies infected with the disease. Dead management body is accessible in the public domain. People are expected to be aware of the guidelines from time to time. These guidelines are:

• Embalming of the dead body will not be allowed and autopsies should be avoided. However, if an autopsy is unavoidable, stringent infection prevention control practises should be adopted.
• The large gathering at the cremation or burial ground should be avoided.
• The health ministry said that the dead body by unzipping the body bag may be allowed for the relatives.
• The guidelines allow religious rituals such as reading holy books, sprinkling holy water and do not require touching of the body.
• Bathing, kissing, hugging of the dead body will be prohibited.
• WHO recommends the Post-mortem examination that packing and transporting a body to burial by ensuring it is fully sealed in a body bag before removed from the isolation to avoid the leakage of body fluid.
• Union Health Ministry has also advised using personal equipment such as long-sleeved, cuffed gowns for handling bodies.

In Last, the bench stated that “Citizens are not expected to take law and order into their hands and if it is so then it would definitely lead to anarchy and there would be a similar kind of incidents in future also”.