The author of this blog is Jitesh Kadian, Research Scholar, JNU NCR-Haryana.
Presently, the world is witnessing the rapid spread of COVID 19. This situation requires plenty of patience to deal with the epidemic situation intelligently. As the number of patient’s increases, people enter into a world of panic which leads them to forget about their values and ethics. As Shakespeare pointed out in his work “hamlet”, “All that lives must die, passing through nature to eternity. Death is a natural phenomenon so the basic decent treatment is expected to be given to the dead”.
When put into perspective in the present times, it is not unfair to say that people dying from COVID 19 are not exactly treated well. Not only people disrespect the dead body by denying the burial or cremation but they also attack the one who is burying the same. Such acts hold no place even in this outbreak. Such Acts are against morality too because even the demised person has a right to a decent burial. Considering such incidents that take place on daily basis in the pandemic situation, in this pandemic situation, the Madras HC recognized the Right to a Dignified Burial as a part of Right to Life and shortly after, the Centre issued guidelines relating to the treatment of bodies infected with Covid-19. The Author, through this Article, tries to look into the various legal aspects involved herein.
Right to decent burial as a Fundamental Right: Judicial Developments
Under the constitution of India, Fundamental rights are those rights which are guaranteed by the constitution itself to the citizens. Fundamental Rights involve within themselves various rights, one of the rights is right to life and personal liberty which takes care of all the basics essential to living a life with dignity. This right is not limited to only one aspect it includes plenty of rights within one Article. The right to have dignified life is not restricted to “living” persons only; it extends to include the right of a dead person which has been recognized by various judicial pronouncements.
In Pt. Parmanand Katara v. Union of India & Anr., the Supreme Court held that the right to dignity and fair treatment continues in respect of the dead body of the condemned man. In Varied Porinchukutty v. State of Kerala and Ors, Court upheld that disposal of bodies forms a part of religious practice and it was observed that, “The mode of disposing of a body is also a matter of religion and intrinsic to one’s religious beliefs. By this observation, the court allowed the community to dispose of the body according to their already set and established practice such as Hindus disposal of the dead is effected by cremation but among Muslims, Jews and Christians it is done by burial. Such practices of burying dead bodies and others are regarded as their fundamental right regarding the practice of religion.”
It has been recognized by the court that the mode of disposing of the body shall be done following the religious rites and ceremonies. But the court has not restricted itself with the modes but also recognized the Right to a decent burial. In 2007, Madras High court in S.Sethu Raja v. The Chief Secretary held that “The right to life includes the right to live a life with dignity which is extended to a person who is dead under the tradition and culture the right to decent burial or cremation to the dead body of a person, is regarded as a part of the right to live with dignity”.
Right to decent burial of one who died from COVID-19 as a Fundamental Right
Today, the worldwide outbreak of COVID-19 is a matter of concern for everyone. During this outbreak, various unfortunate events have taken place. One among them is the death of infected persons, including health workers. There has been a chain of events where even the dead infected persons are disrespected. People are not willing to bury the dead body by having a belief that a dead person even can spread the virus. Whereas, WHO has already issued guidelines that clearly stated that the dead body of an infected person can be buried and even friends and relatives can witness the cremation after taking proper precautions as required.
Among these circumstances, there has been an instance where the cremation of the dead body of a Doctor who passed away on account of the infection of COVID 19 was opposed. People even attacked the Ambulance in which he was carried. The situation rapidly turned violent and posed a question on the moral ethics of people. After this instance, the Madras High court took cognizance of the matter and upheld the right to decent burial as a fundamental right. The Madras High Court noted that "At first glance, It appears that as a result of the alleged acts, even a person who was part of a noble profession as a doctor and at the end moment of his life, has been deprived of his right, to have a decent burial. Citizens are not expected to take law and order into their own hands and if it is so, it would lead to anarchy. There is a likelihood of similar kind of incidents to occur in the future also."
Therefore, the High court division Bench issued notice to the State of the Tamil Nadu, Health Department, and allied authorities of Tamil Nadu, the Chennai Corporation Commissioner, and state Police authorities, to protect the public interest. The Court also emphasized the Union Health Ministry issued guidelines for facing the disapproval of society from various aspects related to COVID-19.
Guidelines for the burial of dead body of infected person
Likewise, the world, India is also witnessing the COVID outbreak which has devastating consequences. It is desirable now to regulate the entire situation by issuing guidelines keeping public interest in mind. Various guidelines have been issued by the respective department. Government of India Ministry of Health & Family Welfare has issued guidelines on the Dead Body Management 15th of March 2020.
Such Guidelines are limited in scope to hospital deaths only on the ground that India is currently having travel-related cases and few cases of local transmission. At this stage, all confirmed cases will be isolated in a health care facility. The guidelines notified that the main driver of transmission of COVID-19 is through droplets. There is a risk of COVID infection from a dead body to persons including health workers or family members or relatives.
Rule 11 provides for the conditions at the crematorium/ Burial Ground which mandate the Crematorium/ burial Ground staff to be sensitized as to that COVID 19 does not pose additional risk. The staff shall have to take all standard precautions as to hand hygiene, use of masks, and gloves. The Guidelines allow the Religious rites and rituals such as reading from religious scripts, sprinkling holy water, and any other last rites but does not allow any such ritual which requires touching of the body. Therefore, it can be inferred from the above-mentioned points that cremation or burial of Body has not been disallowed though precautions must have been taken.
A way forward
The Madras High Court took cognizance of matter which affected the rights of COVID infected persons and thereafter issued the order to the government. That was a good way forward to protect the rights of COVID infected persons, even the dead person. During the unfortunate and critical situation, it is of great interest to ensure the rights of persons effectively so that they can live a decent and dignified life during this outbreak situation.
As the current situation, which world is witnessing, brings various challenges which need to be tackled on time, one of them being the challenge to protect the rights of a person infected from COVID because people see them as hazardous entities and avoid them, isolating and ill-treating them indirectly as they try to protect themselves from this deadly Virus. Being a communicable disease with no vaccine, it is a very scary idea and the reaction is expected, but it is in times like these that the world needs to come together and humanity needs to shine by displaying support, warmth, and understanding to one another and fight this Virus together. The way that Doctor’s body was treated was ethically, morally, and legally incorrect, and acts like these must be condemned and corrected. Together, we must create awareness about the legal right of a person to a dignified burial post demise, and the knowledge regarding the guidelines issued by the Apex Court to be followed as of now in the impending matter.
 Pt. Parmanand Katara v. Union of India & Anr. (1995) 3 SCC 248.
 Vareed Porinchukutty v. State of Kerala and Ors., 1971 KLT 204.
 S.Sethu Raja v. The Chief Secretary (2007) 5 MLJ 404.
 Suo Motu WP No. 7492 of 2020, 2020 SCC Online Mad 938, decided on 20-04-2020. https://www.mohfw.gov.in/pdf/1584423700568_COVID19GuidelinesonDeadbodymanagement.pdf