Rights of the Dead: Do they have any in India? Revisiting the sensitive subject in wake of the Hathras victim's rushed cremation
30, Sep 2020 | Sanchita Kadam
Soon after the death of Dr. Simon Hercules in Chennai and the subsequent brouhaha over his last rights, where he was denied a dignified funeral, CJP’s sister publication Sabrang India had delved deep into the subject of rights of the dead in India. Today, we feel the need to revisit this in wake of the rushed and allegedly forced cremation of the Hathras rape victim.
The Madras High Court has taken cognizance of an incident that took place in Chennai where the remains of a 55 year old doctor who died of Covid-19 were denied burial by protesting mobs. The Late Dr. Simon Hercules was a neurologist and the Chairman of New Hope Hospital in Chennai. It is suspected that contacted the disease from a patient.
Soon after his death, his mortal remains were being taken to TP Chatram burial ground in Kilpauk for burial, but close to 40 residents gathered there to protest. Without any luck in convincing the protesters, they proceeded to Velangadu burial ground where a similar thing happened and a mob of around 70 people gathered and attacked the officials with sticks and stones. In this attack, many officials were injured, including the ambulance drivers; additionally, it is alleged that the corpse of Dr Hercules was also hit with these stones!
They had to go back to the burial ground with police protection and buried the body in a haste and with no JCB, they had to fill in the grave with their hands. The New Indian Express reported that police on Monday arrested 20 people for damaging the ambulance and creating a ruckus at the burial ground. Cases have been booked under Sections 188 (Disobedience to order duly promulgated by public servant), 147 (punishment for rioting), 148 (rioting, armed with deadly weapon), 341 (wrongful restraint), Tamil Nadu Private Property Prevention of Damage and Loss Act.
A rather gut wrenching incident in a country where just a few weeks ago, people were clapping in their balconies a few days for health care workers and their service. But is it illegal to deny someone their last rites? Does a deceased person lose their right by the virtue of being dead? Do deceased persons have rights in India? Let us explore these questions.
Right to decent burial
A division bench comprising of Justices M Sathyanarayanan and M Nirmal Kumar took suo moto cognizance of this incident. The bench stated, “Citizens are not expected to take law and order into their hands and if it is so, would definitely lead to anarchy. There is likelihood of similar kind of incidents to occur in future also.”
The court issued notices to the Tamil Nadu government as well at the police and observed that “the scope and ambit of Article 21 includes the right to have a decent burial.” The court also invoked and highlighted section 297 of the Indian Penal Code which deals with the offence of Trespassing on burial places:
Whoever, with the intention of wounding the feelings of any person, or of insulting the religion of any person, or with the knowledge that the feelings of any person are likely to be wounded, or that the religion of any person is likely to be insulted thereby, commits any trespass in any place of worship or on any place of sepulchre, or any place set apart from the performance of funeral rites or as a depository for the remains of the dead, or 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.
The bench also mentioned sections related to unlawful assemblies and the power of armed forces to disburse such unlawful assemblies, indicating the strict cognizance of the matter by the court. The court also emphasized that eh guidelines that have been issued by the Central government from to time in relation to Covid-19 are expected to be known to the citizens and followed thoroughly.
Rights of the dead in India
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 courts again and again. However, there are other rights of the dead that are expressly stated in our laws.
Section 404 of the IPC recognizes dishonest misappropriation of the dead man’s property as an offence. Further, section 499 of IPC which deals with defamation, stipulates that libel or slander against a dead person also constitutes the offence of criminal defamation.
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.
Section 297 of the IPC, as mentioned above, 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.
International covenants and laws on rights of the dead
Geneva Convention 1949 : Article 16 of this covenant states, “As far as military consideration allow, each party to the conflict shall facilitate the steps taken to protect the killed – against ill treatments.”
Australia’s Defence Force Manual, 1994 states, “The remains of the dead , regardless of whether they are combatants , non- combatants,protected persons or civilians are to be respected, in particular their honour, family rights, religions convictions and practices and manners and customs at all times they shall be humanely treated.”
The UK Military Manual, 1958 states “The dead must be protected against maltreatment.”
The United Nations Commission on Human Rights: 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 right to dignity prevails even after death, is clear from the following precedents set by the Supreme Court of India.
In S. Sethu Raja vs The Chief Secretary [W.P.(MD)No.3888 of 2007 decided on 28 August, 2007], the petitioner had brought to the court’s attention, the Supreme Court’s stand on right to accord decent burial or cremation to a dead body. The Supreme Court’s stand could be interpreted from its decision in Ram Sharan Autyanuprasi Vs. Union of India (AIR 1989 Supreme Court 549) in which it held thus,
“13……..It is true that life in its expanded horizons today includes all that give meaning to a man’s life including his tradition, culture and heritage and protection of that heritage in its full measure would certainly come within the encompass of an expanded concept of Art.21 of the Constitution.”
Further, the apex court, in Pt.Parmanand Katara Vs. Union of India (1995 (3) SCC 248) had observed thus,
“We agree with the petitioner 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”
In Ashray Adhikar Abhiyan Vs. 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 their religious belief and the corresponding obligation of the State towards such people.
