RIGHT OF A DEAD PERSON TO DECENT CREMATION
The Author of this blog is Pratibha Verma, student of 2nd year BA LLB (H), Sri Ramswaroop Memorial University, Lucknow
of the dead in India
is a country which follows the religion of humanity, where each one of us is
supposed to respect each other in life and in death. In India the Constitution deals with the right
to have a decent burial. Also, the Indian Penal Code deals with some of the
offences related to burial of corpse. 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 the courts again and again.
Article 21 of the Constitution of India which
guarantees the protection of life and personal liberty, has been interpreted by
the Supreme Court in many instances and given an expanded meaning by judicial
pronouncements. The right to life has been held to include the right to live
with human dignity. By our tradition and culture, the same human dignity with
which a living human being is expected to be treated, should also be extended
to a person who is dead. The right to accord a decent burial or cremation to
the dead body of a person, should be taken to be part of the right to such
is a covenant in the Geneva Convention 1949, which states that, “As far as the
military consideration allow, such party to the conflict shall facilitate the
steps taken to protect the killed”.
Judiciary in many cases have observed and interpreted that right to have a
decent burial is also included in Article 21 of the Constitution. Right to
human dignity is not restricted to living human being but is available even
after death. The right to dignity prevails even after death, is clear from the
following precedents set by the Supreme Court of India.
S. Sethu Raja vs .The Chief Secretary [W.P.(MD)No.3888 of 2007 decided on 28
August 2007],when the petitioner had brought to the court’s attention, the
Supreme Court stood 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, in which it held that, “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 Article 21 of the Constitution”.
the apex court, in Pt. Parmanand Katara vs. Union of India(1995 (3) SCC 248)
had said that, “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 the living man but also to his body after his death”.
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
Under the Indian Penal Code
a burial place, place of worship and place of sepulcher is a cognizable offence
under Section 297 of the Indian Penal Code. The Section 297 clearly prohibits
irreverence to dead bodies .
Thus, the right to decent burial comes under the Indian Penal Code. A person
prosecuted under the section 297 can be punished for imprisonment for a term
which may extend to a period of one year, or with fine or with both. Recently the Madras High Court in a case of a
doctor, who died due to COVID-19 infection, where a large mob assembled and opposed
the burial of the dead body had observed that “the scope of Article 21 includes
the right to have decent burial”, the court also invoked and highlighted
Section 297 of IPC. 
404 of the IPC recognizes dishonest misappropriation of the dead man’s property
as an offence
. A person prosecuted under section 404 of IPC, can be punished with
imprisonment either description for a term which may extend to 3 years and also
shall be liable to fine and if the offender is a clerk or a servant of the
deceased person, the imprisonment may extend up to 7 years. 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 .
Also, Section 503 of the IPC which defines criminal intimidation, includes
threatening a person dear to him, as an offence.
In regards to the Hathras Case
has been observed by the Lucknow bench of the Allahabad high court that the
Uttar Pradesh government’s decision to forcibly cremate a Dalit gang rape
victim in the middle of the night was a violation of human rights and reasons
given by the Hathras district administration to deny her family a chance to
conduct her last rites were not satisfactory. The observation was part of an
order made public by the division bench of justices Pankaj Mithal and Rajan Roy who recorded statements
of the victim’s family and government officials.
In the order, the judges said district
magistrate Praveen Kumar Laxkar could not satisfy them about the observance of
the last rites. The 19 year old Dalit woman was cremated against her family’s
wishes at 2:30am on September 30.
judges said that they will focus on two things: Possible violation of rights of
the victim and her family, and larger issues involved in the context of such
rights. In the order, the court focused on the rights of last rites and
traditional rituals accorded to the kin of the deceased. “Sensitivities of the
people, which the Constitution recognizes as fundamental rights such as a right
to decent burial/cremation as per traditions and customs followed by the
family, have to be respected,” said the court.
victim was a Hindu. According to Hindu customs, a body cannot be cremated after
sunset and before daybreak. Other than the horrific act that led to the
victim’s death, one cannot help but wonder- was the victim’s right to dignity
violated upon death?
Allahabad High Court said the victim of the Hathras gang-rape and murder was
entitled to a decent cremation in accordance with her religious customs, which
“essentially are to be performed by her family” .
Action of state authorities, in name of law and order situation, is prima facie
an infringement upon human rights of victim and her family, observed the bench.
“Admittedly, though the administration may not have categorically refused the
family members to see the face of the deceased
but the fact remains that it was not shown to any of them in spite of
their repeated requests,” the court said.
bench had heard the depositions of family members of the victim and government
officials as it had summoned them to respond on the issue of cremation of the
victim in the night without the performance of last rites by the family members
and relatives. About media coverage, the bench said, “Without intending to
interfere with the right of freedom of expression, we request the media and
also the political parties to air their views in a manner which does not
disturb social harmony and infringe upon rights of the victim’s family and that
of the accused.”
court, in its detailed order said that the larger issue which this incident
raises impacts such rights of other residents of the entire state. The court
order said that “no one should indulge in character assassination of the victim
just as the accused should not be pronounced guilty before a fair trial”.
it can be concluded that all the persons are born free and equal in dignity and
rights but the common man today is crying for justice. Food, clothing and
shelters are not just his biggest concerns but now also about his right to
decent cremation/burial. Also, the guiding principle of governance and
administration, after independence, should be to ‘serve’ and ‘protect’ people
and not to ‘rule’ and ‘control’ as was the case prior to independence. Government
should come out with appropriate procedures as guidance for district officials
to deal with such situations.
 Article 21 of the Constitution
 Article 16 of Geneva Convention, 1949
 Sharan Autyanuprasi vs. Union of India (AIR 1989 Supreme Court 549)
 Pt.Parmanand Katara vs. Union of India(1995 (3) SCC 248)
 Ashray Adhikar Abhiyan vs. Union of India, AIR 2002 WCP 143 of 2001
 Section 297 of IPC
 Section 404 of IPC
 Section 499 of IPC