Legal Jurisprudence accords high stature to bodily integrity. This vehicle for awakening has DNA engulfed with precious information of our lineage making privacy, bodily integrity, dignity and property command veneration in the eyes of law. But floating bodies in UP and Bihar reveal that the treatment meted out to the dead is amateurish. According to a report, over 2,000 bodies were found in 1,140 km on the bank of River Ganga, the symbol of faith and culture where social and religious traditions coalesce. Hundreds of shallow graves were uncovered on the banks of the Ganga at Unnao, Ballia, and Ghazipur, according to the Hindustan Times. These corpses were male and female, young and old, white and black, married and single, or might be divorced. But still, whether alive or dead, they were Indians.
This appalling and disgraceful treatment of the dead reminds us of John Harris who claimed how can dead command respect? He puts that the objections to actions that violate the physical integrity of the corpse are scarcely rational and illusions. Thereby the courts and the State should not give support to these illusions.
It asks for rejection because a biographical person does not bite the dust just because of the death of the body. All over history, the belief has been that the body will be respected as a representation of the living individual after death. Under the International Humanitarian Law, Article 130(1) of the Fourth Geneva Convention portrays that the onus is on the State to ensure that ‘graves are revered, well-maintained, and clearly marked so that they can be identified at all times.’. The dead bodies floating in the river do possess fundamental rights and particularly of decent burial as in the words of Brazier that the cause and context of death does not change their nature of mother, husband or daughter.
Dead Body as a Legal Person has Posthumous Rights
According to Salmond, a person is any being whom the law regards as capable of rights and duties. The deceased are also legal right holders if one embraces an Interest Theory of rights, which believes that a person’s interests can transcend death and that these interests can be recognised by the law.Furthermore, the fact that the dead are unaware of the legal harm does not exclude them from possessing posthumous rights. It is not necessary to be aware of a legal injury for one to occur. Terry Schiavo in Schindler v. Schiavo, though being in a persistent vegetative state, was considered a legal rights holder. The Supreme Court of India (‘SC’) delineated in Parmanand Katara v Union of India(1989) that the dead deserve significant moral and legal standing in our society.
This black death has nothing but rejigged the deceased’s body from a vessel with a living helmsman to a corpse with no autonomy. But in the words of Henry-Scott Holland, death does not count and has no right to discount legal rights. And many posthumous legal rights have been developed as a result of dignity and autonomy. In the words of Professor Matthew Karmer, the dead person still exists:
“By highlighting . . . the continuing influence of the dead person on other people and on the development of various events, the memories of him that reside in the minds of people who knew him or knew of him, and the array of possessions which he accumulated and then bequeathed or failed to bequeath—we can highlight the ways in which the dead person still exists.”
Right to Decent Burial
Right to decent cremation has been regarded as a new feather in the ever-expanding fundamental rights in India. In Common Cause vs. Union of India,the SC made a crisp observation that life devoid of dignity is a crushing defeat, while life which is fortunate to embrace death with dignity is a value to be aspired for. But despite a plethora of precedents, floating bodies in rivers narrate that people consider death as an indignity, an affront to life and hence ‘death with dignity’ is an oxymoronic phrase. The curt reply to these sentiments is provided by Coope who suggests:
if no one understands the phrase “death with dignity” we likewise do not understand the sentence: “This is a death without dignity”
A. Horizons of Article 21
The dust has already settled around ‘right to life’ enshrined in article 21 of the Indian Constitution, that it encapsulates the right to life with dignity and that dignity transcends death. In Ramji Singh @ Mujeeb Bhai v. State of U.P. &Ors., the Allahabad High Court (‘HC’) held that a deceased person is covered by Article 21 of the Constitution, and his right to life with dignity should be applied in such a way that his dead body is treated with the respect that he would have earned if he were alive, according to his tradition, culture, and religion. In Marimuthu v. State, the Madras HC stated that article 21 of the Constitution guarantees the right to dignity and equal care not only to a living person but also to his body after death and that every human being is entitled to a decent burial in accordance with culture and tradition after death.
Recently in Pradeep Gandhy vs State of Maharashtra, the Bombay HC reiterated the concept of article 21 for the dead and observed that there is little reason to dispossess the dead from dignified burial according to traditional practices. In Vineet Ruia v. State of West Bengal, the Calcutta HC, perturbed by the treatment meted out to the dead, even issued guidelines in accordance with article 21 and 25. But everything seems to ride roughshod.
B. Horizons of Article 25
Irrespective of theism or atheism, freedom of conscience and free profession and practice of religion is cushioned under article 25(1) of the constitution. The term ‘religion’ is not related to any particular religion, sect or denomination. It is a matter of faith and one’s own conscience that can lead to a person professing and practising what might be considered religion in the broadest sense. It’s a question of feeling connected to the person who has died, and close relatives can be in any degree of connection with the person who has died.
In Budhadev Karmaskar vs. State of West Bengal, the SC expounded that the term “life” in Article 21 refers to a dignified life, not just an animal life. This particular concept of transition from animal life to dignified life postulates that an individual has a freedom to uphold and appreciate the universal principle of love and loyalty to one’s nearest and dearest, as well as to suffer sorrow and do things to relieve the sadness that arises from unfortunate events. This also implies that the dead has the right to be cremated in accordance with the last rites as it has both sentimental and emotional aspect. In S. Sethu Raja v. The Chief Secretary, the Madras HC held that the last rites of a person’s dead body are steeped in tradition and culture and one can trace the lineage of right to a decent funeral in article 25 of the constitution. In AkshrayAdhikar Abhiyan v. Union of India &Ors., the SC again stressed on the performance of last rites in accordance with religious faith of the deceased.
In the sinister pandemic, we also have to askance at the conflict between public health safety on one hand and religious beliefs such as cremation by following traditions under article 25 on the other hand. In Varied Porinchukutty v. State of Kerala and Ors, 1996, the Kerala HC mentioned that the term ‘religion’ under article 25 encapsulates religious practices of the community. Thereby implicitly mentioning the right to exercise religion and faith while cremation. But as a matter of fact, it is important to be ‘safe’ rather than ‘sorry’ in this pandemic. By observing the current atmosphere, it is imperative that health should take precedence over religious rights of a deceased person.
But this puzzle gets solved if we thoroughly look at article 25. Right to religion is subject to public health, thereby public health should take precedence. But at the same time, it also implies that the state must make every effort to ensure that the disposal of bodies is treated with the dignity that it accords to human beings. Moreover, in the pandemic itself, there have been scientific studies which say that infection can’t spread from dead bodies.
According to Mother Teresa, a beautiful death is for people who have lived like animals to die like angels. But in contemporary India, forget about angels, there is no rest to agony in death. Rights of the dead is another facet of human rights. In these unprecedented and challenging times, the state should carve out a plan to honour the dead by balancing both tradition and health priorities. Reckless and Irresponsible treatment to the dead, fundamentally violates bodily integrity. It’s human to make mistakes, but learning from them and correcting the situation is the order of the day. The proper management of dead body disposal must be established in accordance with WHO recommendations and GoI (Government of India) guidelines, as well as the feelings of community members for whom the burial of a deceased member of their community is an integral part of their religious belief and faith.
Author: Pragun Goyal is pursuing B.A.LL.B(Hons.) from National Law University, Delhi.