Abstract
Saood Ahmad*
Through Covid-19, a new type of transformation has evolved in society, one that has molded and transformed the social acceptance of mortality as well as the acceptance of some posthumous rights. Currently, it appears that there is a trend toward granting dead rights, possibly because the social dimension is altering our perspective of the world. This continual conflict influenced by elements such as time, fundamental nature, and the impossibility of rights, results in a unique balancing act that courts and lawmakers must continue to carefully traverse. It is the role of the state to defend the rights of the deceased and prevent crime over the dead corpse in both natural and unnatural deaths (accident, suicide, homicide, etc.).
It is also necessary that the States/UTs develop an SOP in conjunction with all stakeholders to guarantee that the dead’s dignity and rights are safeguarded. Hospital administration, police, forensic medicine personnel, district administration, Municipal Corporation, civil society groups, and residents of the country are among the stakeholders. Thousands of dead bodies drift in the river, distracting the mind and turning into animal food. Rivers are becoming poisoned, and new diseases are predicted to emerge as a result. It can be deduced from this that we require a more effective and appropriate legislative framework at this level. There is also a need for a stronger policy and a body of rights at the international and national levels, which preserves the dignity of completing their rites with dignity even after death, and improves the legal protection of all who do the honors.
*Research Scholar Department of law Aligarh Muslim University (AMU) Aligarh.
Introduction-
A legal definition of a person does not yet include a deceased person. It does, however, have some rights that are inextricably linked to it, even if the body is lifeless, and which combined make up a human being. The Indian Succession Act of 1923 determines how a person’s will is carried out after his death. The state is also obligated to both the welfare of the state and to defend the rights of such individual in the broader meaning of Article 21 of the Indian Constitution for a dignified and appropriate burial or cremation in line with the man’s religious beliefs..The right to life provided by Indian constitution also includes right to decent burial A person has not yet been defined in law to include a deceased person. It does, however, have some rights that cannot be separated from it, even if the body is devoid of life, and which together make up a human being. The Indian Succession Act of 1923 governs the execution of a person’s will after his death.
A person’s right to have his or her dead body protected from being mutilated, wasted, or having its organs taken is protected under the Transplantation of Human Organs Act 1994, unless the individual gave his or her agreement when he or she was alive, or with the approval of his or her kith and kin or the state if the body is unclaimed. The continued viral media stories clearly emphasis the sufferings of COVID-19 sufferers, as well as the treatment of their deceased bodies. These occurrences demonstrate that there is a gap in our legal system.These occurrences have highlighted our health-care infrastructure’s lack of preparedness to deal with an epidemic, as well as where the state is failing to fulfill its constitutional duty to improve public health. States must clearly do more to improve basic health facilities and invest more in the healthcare system at the community level.
As evidenced by prior judicial precedents by higher courts, the right to a dignified death, which includes respectful care of dead bodies, sick or not, proper cremation or interment, and so on, is recognized within its scope.As a result, it is the court’s responsibility to ensure that no violations of the rights recognized in its previous judgment be permitted. As a result, the Supreme Court’s participation in the case was not only appropriate but also vital to ensure that the essential constitutional values relating to the Right to Life are preserved.
The Judiciary’s role in interpretation of right to health enshrined in Article-21 of part III of the Indian Constitution-
The Right to Life, as guaranteed by Article 21 of the Indian Constitution, encompasses several facets of a person’s life, including the Right to Dignity. This privilege has been extended to dead people by numerous Supreme Court and High Court judgments.
In India, there is no explicit law protecting the rights of the deceased. The courts, on the other hand, have repeatedly stated that the dead should be treated with dignity and that their rights should be protected. The Indian Supreme Court, in the landmark case of Parmaand Katara, Advocate v. Union of India & Anr.[1]In1989 recognized that the right to life, fair treatment and dignity, extend not only to a living person but also to his dead body. These rights have been derived from Article 21 of the Constitution of India. Furthermore, the acknowledgment of posthumous legal rights confers important moral standing on the deceased inside our legal system. The law also seeks to honors and defends a decedent’s intentions and interests.
InP. Rathinam v. Union of India,[2]The scope of article 21 has been expanded to include a person’s dignity. It highlighted that the right to life refers to a meaningful life, not only survival as an animal. Furthermore, a person’s right to dignity is extended to a deceased person.
High Court judgments-
In the case of S. Sethu Raja v. Chief Secretary,[3]The Madras High Court ordered the government to bring the deceased body back from Malaysia so that it might be buried at home in accordance with local traditions and customs
Ramji Singh and Mujeeb Bhai v. State of U.P. & Ors,[4]
The Allahabad High Court argued in this case that a person’s right to life includes the right of a deceased person’s body to be treated with the same respect as if he were alive. The state must treat the dead with dignity and must only use postmortem if it is absolutely necessary.
Judgment during Pandemic-
1.On July 27, 2020, the Karnataka High Court ruled that the state government and civic authority Bruhat Bengaluru Mahanagara Palike (BBMP) must issue guidelines to safeguard the dignity of the deceased. The Karnataka State Government has been ordered to ensure that deceased bodies are properly buried or cremated. Immediately following this decision,,On July 29, 2020, the Karnataka State Government issued rules for the management of deceased remains during COVID19.
- The Calcutta High Court on 16 September 2020, in the case of Vineet Ruia V. The Principal Secretary, Department of Health & Family Welfare, Govt. of West Bengal & Ors.[5], was adamant that the right to dignity and equitable treatment guaranteed by Article 21 of the Constitution applies not just to living people, but also to their mortal remains after death. Whether a person dies of Covid-19 or not, disposing of a human body, whether by cremation or burial, should be done with respect and solemnity.
- Telangana High Court on 27 April, 2021, in the case ofR. Sameer Ahmed V. State of Telangana & Ors.[6]“Human bodies are not being treated with the dignity they deserve,” the Court stated. Due to a lack of room and proper facilities and people, the dead remains are stacking up waiting to be burned. The state was asked to provide information on the number of cremation urns and their capacity.
International Framework-
All international human rights rules are founded on the principle of human dignity. The following are some of the international accords and legislation that expressly address the dignity of the deceased.
- “As far as military consideration allows, each party to the conflict shall facilitate the steps taken to protect the killed against ill treatments”[7]
- “In the event of the use of force and in case of armed conflict- it is prohibited to mutilate dead bodies”[8]
3.emphasised the necessity of human remains being handled with dignity, including proper care and disposal, as well as respect for the concerns of families.[9]
4.Human Rights Commission of the United Nations The United Nations Commission on Human Rights, in a resolution on human rights and forensic science published in 2005, emphasised “the need of dignified care of human remains, including correct management and disposal, as well as regard for the needs of families.”.
- “International humanitarian law [Article 130(1) of the fourth Geneva Convention] provides that States should ensure that ‘graves are respected, properly maintained, and marked in such a way that they can always be recognized”.
“As of May 9, 2021, globally 32, 96,841 people have died on account of COVID-19 pandemic whereas in India 2, 42,398 people have lost their lives due to this deadly virus. Due to this record number of deaths, the process of management of dead bodies while adhering to the COVID safety protocol, transportation of bodies and their burial or cremation, etc., has become challenging,”[10] the advisory said.
Despite multiple international and national norms, the “mismanagement” of COVID-19 affected bodies has been recorded, resulting in their “dignity being lowered,” according to the research
The National Human Rights Commission proposed that the government implement legislation to protect the rights of the dead and establish temporary crematoriums to alleviate the current delays in performing last rites.
Some of the Important Recommendations, among others, are–[11]
Article 3 (a) of the 1990 Cairo declaration on Human Rights in Islam
- Enact particular laws to defend the rights of the deceased: Specific legislation to respect the dignity and safeguard the rights of the dead is required.
2.Set up temporary crematoriums: Given the significant number of COVID deaths and the long lines of bodies at crematoriums, interim arrangements should be prepared as soon as possible to minimise unnecessary delays in cremation.
3.Staff in crematoriums, burial grounds, and cemeteries is being sensitised. The cremation/burial ground crew must be sensitised about correct handling of dead bodies in order to ensure that dignity is maintained during the treatment of dead bodies..They must also be given with the essential safety equipment and facilities so that they can execute their duties effectively and without danger of harm.
- Last rites: Religious practises that do not involve touching the dead body, such as reading from religious scripts or sprinkling holy water, may be permitted
- In circumstances where family members are unable to administer last rites: In circumstances where family members or relatives are unable to administer final rites because they are infected or unwilling to do so because they are terrified of becoming infected, etc.Alternatively, if repatriation of the body to the family is not possible, the State/ Local Administration may execute the body’s last rites, taking religious/ cultural elements into account.
- Encourage the use of electric crematoriums: The use of electric crematoriums may be encouraged in order to prevent the health risks associated with large-scale smoke emissions from burning pyres.
- Piling of dead bodies: It must not be permitted to pile up dead bodies during transit or in any other location.
- Mass burial/cremation: Mass burial/cremation should not be permitted since it violates the deceased’s right to dignity.
- Proper identification and information: Accurate identification of the dead body must be aimed using various criteria for identification, and state authorities must ensure that information about the deceased and missing persons in disasters is handled properly.
10.To prevent arbitrary increases in ambulance charges, the pricing of hearse/ambulance services should be regulated so that people are not abused and do not suffer difficulties in transporting dead remains..
11.Personnel handling dead remains should be protected and adequately compensated: Because staffs at crematoriums, burial grounds, mortuaries, and other facilities are working around the clock during this pandemic, they should be compensated fairly for their efforts. Furthermore, given the risk they face, they should be immunised as soon as possible.
Conclusions-
The state is obligated in law, both under its powers as a welfare state and under Article 21 of the Indian Constitution, to dispose of a dead body in a respectful and respectful cremation/burial following the religious beliefs held or processed by the man.
Except for the rights mentioned previously, the law does not specify any specific rights for the deceased. The Indian Succession Act of 1923 contains provisions for the transmission of a person’s will after his or her death. A person has a right to his or her body after death, which means that no one can use or transplant his or her organs unless and until his or her consent was gained while he or she was alive, as defined by the Human Organs Act of 1994.
The Indian Constitution further states that the state must maintain sanction to remove a dead body that poses a threat to the safety of other living beings and dispose of it properly. As previously noted an unclaimed body must be claimed by the state and investigated by police and medical personnel so that it is clear from the body that the death was not natural.
The government will have to save a large part of the budget to deal with such accidental incidents. High-level trained doctors by which we can tackle epidemics like Covid-19. There should be an initiative to increase the number of medical colleges in each state, which must be full of modern infrastructure and world-class labs.
[1]Parmaand Katara, Advocate v. Union of India & AnrAIR 2039, 1989 SCR (3) 997
[2]P. Rathinam v. Union of India1994 (SCC (3) 394),
[3]S. Sethu Raja v. Chief Secretary2007 (W.P. (MD) No. 3888 of 2007),
[4]Ramji Singh and Mujeeb Bhai v. State of U.P. & Ors 2010 (PIL) No.- 38985 of 2004)
[5]Vineet Ruia V. The Principal Secretary, Department of Health & Family Welfare, Govt. of West Bengal &Ors.W.P. No. 5479 (W) of 2020)
[6]R. Sameer Ahmed V. State of Telangana & Ors (W.P. (PIL) No. 56 and 58 of 2020)
[7] Article 16 (II paragraph) of Geneva Convention 1949 IV
[8]Article 3 (a) of the 1990 Cairo declaration on Human Rights in Islam( 2021)
[9] UN Commission on Human Rights in a Resolution adopted in 2005
[10]Special Correspondent, “Uphold the dignity of the dead, says NHRC” The Hindu May 14,2021atA1
[11]See-National Human Rights Commission, India “Advisory for Upholding the Dignity and Protecting the Rights of the Dead”F no R- 18/182020 PRP and P (RU-1) Dated 14 May 2021.
