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 

Introduction

Law is the aggregate of rules set by men as politically superior, or sovereign, to men as politically subjects. Law is a command enjoining a course of conduct to be observed by all the members of the society. The command may be of a sovereign or of a legally constituted body and addressed to the society in general. Most of the laws are for the living persons but there are also laws for the dead persons. The Constitution of a country is its basic legal document which explains the fundamental rights and duties of its citizens. These Fundamental Rights are essential for intellectual, moral and spiritual development of individuals.

 Rights of the dead in India

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 human dignity.[1]

There 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”.[2]

The 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.

In 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”.[3]

Further, 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”.[4]

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.[5]

Under the Indian Penal Code

Trespassing 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[6] . 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. [7]

Section 404 of the IPC recognizes dishonest misappropriation of the dead man’s property as an offence[8] . 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[9] . 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

It 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.[10]

 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.

The 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.[11]

The 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?

The 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”[12] . 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.

The 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.” 

The 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”.

Conclusion

Hence, 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.

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[1] Article 21 of the Constitution

[2] Article 16 of Geneva Convention, 1949

[3] Sharan Autyanuprasi vs. Union of India (AIR 1989 Supreme Court 549)

[4] Pt.Parmanand Katara vs. Union of India(1995 (3) SCC 248)

[5] Ashray Adhikar Abhiyan vs. Union of India, AIR 2002 WCP 143 of 2001

[6] Section 297 of IPC

[7] www.thehindu.com/news/national-tamil-nadu/right-to-decent-burial-is-part-of-fundamental-right-to-life-says-hc/article31392061.ece/amp/

[8] Section 404 of IPC

[9] Section 499 of IPC

[10] https://www.google.com/amp/s/m.hindustantimes.com/india-news/hathras-case

[11] https://www.google.com/amp/s/www.livelaw.in/amp/top-stories/hathras-victim-was-at-least-entitled-to-decent-cremation

[12] https://www.google.com/amp/s/www.news18.com/amp/news/india/