Covid-19 Patients Have The Right To Decent Burial: Calcutta HC Issues Guidelines

“The right to dignity and fair treatment under Article 21 of the Constitution is not only available to a living person but also to his mortal remains after his demise. Disposal of a human body, whether or not the person dies of Covid-19, whether by cremation or burial, should be done with due respect and solemnness.”

The Calcutta High Court on 16^th September, ruled that right to a decent burial can be traced to Article 25 of the Constitution of India and hence family members of Covid-19 victims can be permitted to perform the funeral rites of the deceased subject to them following precautionary guidelines. It also stated that this is a fundamental right included under Article 21 of the Constitution.

The Bench comprising of Chief Justice Thottathil B. Radhakrishnan and Justice Arijit Banerjee observed that,  “The traditional belief in our country is that unless the last rites are performed before the burial/cremation, the soul of the deceased shall not rest in peace. This belief is deep rooted in our country. It also has an emotional and sentimental aspect. Hence, we firmly believe that the family members of a deceased who was infected with Covid-19 should not be deprived of the right to perform the last rites of the deceased, subject to them taking all necessary precautionary measures.”

While pronouncing its judgment the Court relied on numerous cases, such as the Supreme Court judgment of Pt. Parmanand Katara, Advocate v. Union of India & Anr.: (1995) 3 SCC 248, wherein it was held that right to dignity is available not only to a living man but also to his body after his death; Ramji Singh @ Mujeeb Bhai v. State of U.P. & Ors: 2009 SCC OnLine AII 310=(2009) 5 AII LJ 376, a Division Bench of the Allahabad High Court held that the word and expression ‘person’ in Article 21 of the Constitution includes a dead person in a limited sense and right to life with dignity should be extended in such a manner that his dead body is given respect, which he would have deserved, had he been alive, subject to his tradition, culture and the religion which he professed.

Also, in Ashray Adhikar Abhiyan v. Union of India & Ors.: (2002) 2 SCC 27, the Supreme Court held that the dead body of a homeless person who died on the street is entitled to a decent burial according to the religious faith to which he belonged.

It was therefore mentioned by the Bench that, “Traditions and cultural aspects are inherent to the last rites of a person’s dead body. Right to a decent funeral can also be traced in Article 25 of the Constitution of India which provides for freedom of conscience and free profession, practice and propagation of religion subject to public order, morality and health and to the other fundamental rights under Part III of the Constitution.”

In the recent case of Pradeep Gandhy vs. State of Maharashtra: 2020 SCC OnLine Bom 662, a Division Bench of the Bombay High Court addressed the issue of burial and last rites of a Covid-19 patient’s dead body. The Court observed: “We find little reason to deprive the dead of the last right, i.e., a decent burial according to his/her religious rites, on the face of there being no evidence, at least at this stage, that Covid-19 infection may spread to living human beings from the cadaver of any suspected/confirmed Covid-19 infected individual.”

In the current judgment the Bench clearly stated that, “The restrictions that can be imposed in respect of public order, morality and health and to the other provision of Part III of the Constitution necessarily provide room for fair provision for relatives of the deceased persons to participate to the extent possible in the funeral of a deceased, subject to the respective norms. We may even go to the extent of saying that it is delineable as part of human rights.”

Supporting its judgment the Court also mentioned, that while exercising the Government’s power to impose restrictions on citizens in their way of life in the wake of outbreak of an endemic like Covid-19, a fine balance must be struck by the State and the local self-government institutions so that the aforesaid right of a citizen to perform the obsequies of his near and dear ones does not stand abridged or abrogated excepting for very compelling reasons.

The following guidelines have been elucidated by the Apex Court while expressing the right to burial during the times of the pandemic:

1. When post mortem of the dead body is not required, the dead body shall be handed over to the immediate next of kin of the deceased i.e. the parents/surviving spouse/children, after completion of hospital formalities. The body should be secured in a body bag, the face end of which should be preferably transparent and the exterior of which will be appropriately sanitized/decontaminated so as to eliminate/minimize the risk to the people transporting the dead body.
2. The people handling the dead body shall take standard precautions, e.g., surgical mask, gloves, etc. If available and possible, PPE should be used.
3. The vehicle carrying the dead body to the crematorium/burial ground will be suitably decontaminated.
4. The staff of the crematorium/burial ground should be sensitized that Covid-19 does not pose additional risk. They will practice standard precautions.
5. The face end of the body bag may be unzipped by the staff at the crematorium/burial ground to allow the relatives to see the body for one last time. At this time, religious rituals, such as reading from religious scripts, sprinkling holy water, offering grains and such other last rites that do not require touching of the body, should be allowed.
6. After the cremation/burial the family members and the staff of the crematorium/burial ground should appropriately sanitize themselves.
7. As a social distancing measure, large gathering at the crematorium/burial ground should be avoided.
8. The persons handling the dead body shall go directly from the hospitals to the crematorium/burial ground, as the case may be, and not to anywhere else including the home of the deceased where he/she last resided.
9. In case the body of a Covid-19 infected deceased is unclaimed, the same shall be cremated/buried as the case may be with due dignity, at State expense.

The Court also mentioned that it is satisfied that the State has taken adequate measures to conduct proper reporting of Covid-19 cases or Covid-19 deaths and publication of names of Covid-19 infected persons district wise.

It also stated that the above guidelines are not exhaustive and the State Government or local self-government institutions may and should prescribe additional reasonable measures as they may be advised by medical/clinical experts for the safety and protection of the health of the people who deal with the mortal remains of a Covid-19 victim.