27, May 2021 | CJP Team
CJP re-visits the sensitive subject of the rights of the deceased in our country, given how people are struggling to provide dignified cremations or burials to their loved ones amidst the Covid-19 pandemic.
Plight of the Dead
Dr. Simon Hercules was a 55-year-old neurosurgeon and managing director of New Hope Medical Centre in Kilpauk. He died of Covid-19 in April, 2020 and it is suspected that he contacted the virus while treating patients. Upon reaching to the TP Chatram burial ground in Kilpauk for burial, the family found 40 people protesting the burial. Thereafter, they went to Velangadu burial ground where again the protesters attacked and denied the family the chance to offer Dr. Hercules a dignified burial. In both places, people feared that the virus would spread from the buried body to people in the vicinity. Eventually, the last rites were performed with the help of police protection. But the burial took place hurriedly and in the absence of a JCB machine, they had to fill in the grave with their hands. Post burial the cases have been registered against protesters under various provisions of Indian Penal Code, 1860.
The Court took the suo moto cognizance of the incident and also sent the notice to the Tamil Nadu government. Further, regarding the protest the court held that that citizens are not allowed to take law into their own hands. The court observed that Article 21 includes right to decent burial. The court also invoked Section 297 of Indian Penal code, 1860 which deals with the offence related to trespassing on burial places with an intention to wounding the feelings or insult of any person etc. Further, the court laid emphasis on the spread of awareness regarding the Covid-19 guidelines issued by the government from time to time and the same are being followed accordingly.
Although there is no specific provision under the Indian law that provides for the state responsibility for the burial or cremation of the dead body but from the court has interpreted in various cases. But under IPC there are various provisions that protect the rights of the dead person. Section 404 of the IPC recognises dishonest misappropriation of the dead man’s property as an offence. Similarly, Section 503 of the IPC which defines criminal intimidation includes threatening a person with injuring the reputation of a dead person dear to him, as an offence. Further, Section 297 of the IPC deals with the offence of trespassing on burial grounds etc., states that if any person offers any indignity to any human corpse, or causes disturbance to any persons assembled for the performance of funeral ceremonies, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both. In the case of marginalised sections, especially those belonging to the Scheduled Castes (SCs, Dalits) and Scheduled Tribes (STs, Adivasis) the denial of last rites attract special penal offences. Section 3(1)(r)(y)(za), Section 3(1)(A), Section 3(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC/ST Act) deal with intentional insult and denial of cultural and customary rights of burial and cremation on public burial and cremation grounds. Public servants denying such rights are liable to prosecution under the law.
There have been multiple instances of Dalits being denied last rites even in non-Covid times In September 2020, the infamous Hathras incident in western Uttar Pradesh where the forcible cremation of a 19 year-old Dalit woman had led to national outrage. The act by district authorities, including the police and administration had clearly to do with an attempt to destroy all evidence of the mass crime. CJP filed first and Intervention Application (IA) in the Supreme Court of India and thereafter a Letter Petition in the Allahabad High Court. In July 2020, in Kakarpura village in Etawah district, UP, the body of a 26-year-old Nat woman who died of a uterus infection was already placed on the pyre when members of the more powerful Thakur community intervened and compelled the family to take the body down from the pyre. The distressed family was forced to take the body to the designated cremation ground for people not hailing from ‘upper’ castes. The article related to this from (The Millenium Post) In March 2020, in Puttaganal village of Davangere taluk, Karnataka, it was reported that oppressed classes were not allowed to bury their dead in graveyards belonging to other communities and were forced to bury their dead along the road as a report in the New Indian Express revealed. A October 16, 2011 by DNA indicated that the Maharashtra Ministry for social justice stated that Dalit burial grounds have been usurped by upper castes in with 72.13% of the state’s 43,722 villages. In January this year, 2020, The New Indian Express reported that the Dalits of Vadachinnaripalayam village in Tirupur district, Tamil Nadu had approached the district Collector alleging that for 50 years they were denied a burial ground and were using spaces available along the roadside to bury the departed A News18 report of November 2018 stated that Dalits of Veedhi village in Coimbatore, Tamil Nadu were forced to carry out funeral procession through garbage dump yard and sewers as they were denied access to the road used by upper castes
Article 16, Geneva Convention, 1949, provides for steps to be taken for the protection of those killed, against any ill treatment by the parties involved in the conflict. The United Nations Commission on Human Rights: Under the 2005 resolution on human rights and forensic science underlined the importance of dignified handling of human remains, including their proper management and disposal as well as of respect for the needs of families. The UK Military Manual, 1958, provides for the protection of dead against any maltreatment. Australia’s Defence Force Manual, 1994, provides for the protection and respect of dead irrespective of whether they are combatants, non- combatants, protected persons or civilians and their honour, family rights, religions convictions and practices and manners and customs be respected.
It is very clear from the precedents set by the apex court that the right to dignity will prevail even after the death of the person. S. Sethu Raja vs. The Chief Secretary (W.P.(MD)No.3888 of 2007) the apex court reemphasised on the right to accord decent burial or cremation to a dead body which was earlier held in the case of Ram Sharan Autyanuprasi vs. Union of India (AIR 1989 Supreme Court 549). Similarly, the apex court in the case of Pt.Parmanand Katara Vs. Union of India (1995 (3) SCC 248) accepted the argument of the petitioner that right to dignity and fair treatment under Article 21 of the constitution is not only available to a living person but also to the body of the dead person. Further, in the case of Ashray Adhikar Abhiyan vs. Union of India (AIR 2002 SC 554), the Supreme Court held that the homeless deceased also have a right to decent burial as per the religious belief and corresponding duty of state towards the people.
*Feature image by Vijat Pandey for SabrangIndia
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