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Burial Or Cremation : Right To Dignity Of The Dead Amid COVID-19

Sparsh Upadhyay
22 April 2020 7:26 AM GMT
Burial Or Cremation : Right To Dignity Of The Dead Amid COVID-19
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In William Shakespeare's celebrated work 'Hamlet', there is a scene, where Gertrude (The Queen of Denmark), in a failed attempt to console her son, Hamlet, (who has just lost his father) and to persuade him to move beyond his mourning period, unusually says, "All that lives must die, passing through nature to eternity." Even though Hamlet isn't very moved (quite obviously) and impressed with her argumentation and philosophy, but we, the readers of the Shakespearean tragedy know it well that through Gertrude, Shakespeare is giving all of us a rude reminder – the fact, that death is indeed inevitable.

While death is considered to be a natural phenomenon, the basic decent treatment which is expected and ought to be given to the dead doesn't always germinate and actualise naturally. And recently, we had to witness such an unfortunate case, where the burial of a Doctor, Dr Simon Hercules, who succumbed to a heart attack (his on-going health problems having been aggravated on account of COVID infection) invited mass opposition, creating a law and order situation in Chennai.

Not just that, the mob even pelted stones and attacked the ambulance (twice) in which the dead body of Dr Simon Hercules was being taken to the burial ground. The situation had turned so violent they the colleagues of Dr Simon carrying his mortal remains had to flee to save themselves from the mob; later they had to dig a grave with bare hands to bury his dead body.

Soon thereafter the Madras High Court had to step in to issue a notice to the state on its motion to remind that the scope and ambit of Article 21 includes, right to have a decent burial. The Division Bench of the High Court had to make the categorical remark that,

"In the considered opinion of the Court the scope and ambit of Article 21 includes, right to have a decent burial. It prima facie appears that as a consequence of above said alleged acts, a person who practiced a noble profession as a doctor and breathed his last, has been deprived of his right, to have a burial, in a cemetery earmarked for that purpose and that apart, on account of law and order and public order problem created, the officials who have performed their duties, appeared have sustained grievous injuries."

This heart-rending incident from Chennai reminds me of Bahadur Shah Zafar, the last Mughal emperor and his poetic lament. Unable to find a final resting place in his beloved homeland (India), the last Mughal emperor quite rightly summarised the plight of the dead - Kitna hai badnaseeb Zafar dafn ke liye/Do gaz zameen bhi na mili koo-e-yaar mein (How unlucky is Zafar! For burial, even two yards of land were not to be had in the land of his beloved).

In the immediate past, just like the 'Novel' CoronaVirus, a 'Novel' dilemma too, has come up for our consideration, and which would ultimately form the bedrock of the present article, which is - once a COVID-19 infected person dies, should we be burying him/her or cremating him/her? What are the current Guidelines on this point? And last but not the least; do we owe a duty to hand out a decent burial/cremation to a COVID-19 infected patient?

To arrive at a categorical conclusion, we would glance through the Guidelines issued by the Ministry of Health & Family Welfare, Government of India, some recent controversies and some celebrated case laws, to put things into perspective.

Ministry of Health & Family Welfare Guidelines

On 15th of March 2020, Directorate General of Health Services (EMR Division), Ministry of Health & Family Welfare, Government of India released a document containing 'Guidelines On Dead Body Management (COVID-19)' – [hereinafter, 'Document']. Till date, it remains un-amended and it is based on the Ministry's current epidemiological knowledge about the COVID-19.

The Document acknowledges the fact that "since India is currently having travel-related cases and few cases of local transmission" only and so it is but natural that "at this stage, all suspect/ confirmed cases (of COVID-19) will be isolated in a health care facility." Hence the Document is limited in scope to hospital deaths only.

What all is allowed at the Crematorium/Burial Ground? (Point No. 11 of the Document)

In this section, we would be looking at the bare guidelines issued by the Ministry of Health & Family Welfare, Government of India in the concerned document.

  • The Crematorium/ burial Ground staff should be sensitized that COVID-19 does not pose additional risk.
  • The staff will practice standard precautions of hand hygiene, use of masks and gloves.
  • Viewing of the dead body by unzipping the face end of the body bag (by the staff using standard precautions) may be allowed, for the relatives to see the body for one last time.
  • Religious rituals such as reading from religious scripts, sprinkling holy water and any other last rites that does not require touching of the body can be allowed. Bathing, kissing, hugging, etc. of the dead body should not be allowed.
  • The funeral/ burial staff and family members should perform hand hygiene after cremation/ burial.
  • The ash does not pose any risk and can be collected to perform the last rites.
  • Large gathering at the crematorium/ burial ground should be avoided as a social distancing measure as it is possible that close family contacts may be symptomatic and/ or shedding the virus.

It is important to note that none of the above-mentioned 7 points (forming part of the Guidelines) disallows the Cremation or Burial to take place of bodies of COVID-19 victims. Also, even the family members of COVID-19 victims are not prevented from attending and performing the last rites (according to their own religious beliefs) of their kin. However, many states have restricted the number of people who could be present at the burial/cremation place, while the last rites are being performed.

While the Guidelines are unambiguous, there have been many controversies around the mode of disposal of bodies of COVID-19 victims and they have created unnecessary panic among the people (among both, religious minorities and family members of COVID-19 victims).

Before moving on to the unsettled and much graver issues, let's just quickly cast our eyes over two such controversies, one from the United Kingdom and another from Maharashtra which created much uproar but were settled quite promptly and harmoniously.

The United Kingdom's Controversial Bill

With the surge of COVID-19 Patients, the UK Government sought to bring in emergency legislation – 'The Coronavirus Act 2020', which contained a provision under which, designated local authorities could disregard section 46(3) of the Public Health (Control of Disease) Act 1984, which is primarily aimed to prevent a local authority from being able to cremate a body against the wishes of the deceased overriding his/her religious beliefs.

In other words, a provision of the said bill (now an Act minus this particular provision) sought to impose compulsory cremation on coronavirus victims. Apart from other controversial elements of the initial proposal, there was a section in the proposed bill, which would have given local authorities the power to cremate (actually forcefully cremate) the bodies of COVID-19 victims (discarding his/her religious beliefs) without his/her (or family's) consent.

However, after receiving complaints and strong objections from religious minorities (Jews and Muslims) of the country that it would infringe on their burial rights, the UK government later changed its mind.

An amendment was later incorporated in the bill (now an Act), which stated that the authorities must "have regard" for the disposal of bodies "in accordance with the person's wishes, if known, or otherwise in a way that appears consistent with the person's religion or beliefs, if known."

It is crucial to note that on 12th of April, Sri Lanka had made cremations compulsory for COVID-19 victims irrespective of their religion. Apart from the country's Muslim population, this decision has also been criticised by rights groups of the country.

Maharashtra's Civic Body Circular

On March 30th, 2020 (7 days after the United Kingdom had settled the Cremation-Burial Controversy), Maharashtra Civic Body, The Brihanmumbai Corporation (BMC), deriving powers conferred under sections 2, 3 and 4 of Epidemic Diseases Act, 1897, notified the circular that all bodies of COVID-19 victims shall be cremated "at the nearest crematorium irrespective of their religion."

Soon thereafter, Cabinet minister in Maharashtra Government and NCP MLA, Nawab Malik intervened in this matter, and as a result of this, the circular was hurriedly withdrawn and the civic body came up with a revised circular (now in force), which states that burials will be permitted if there is an availability of a big burial site. It also clarifies that the burial should take place in a deep grave. The Bombay HC also observed that the revised circular does not prevent burial of COVID-19 infected persons.

However, it has also been notified in the revised circular that if someone in-fact wants to bury the body of the deceased, the kin and other family members have to make sure that necessary precautions are taken care of (zero possibility of transmission/spread of virus) and burial proceedings/practices shall take place in the presence of police.

However, on the 1st of April, just one day after the controversial circular was amended by BMC, a Muslim man who died from COVID-19 infection, could not get a place for burial in Mumbai, and so the local administration had to take the dead body to the nearest Hindu cemetery ground, where it was cremated with all honours.

Rights of the Dead and Indian Courts

The Supreme Court of India along with many High Courts has, through many celebrated Judgments accepted that the human corpse (dead body) should be treated with appropriate dignity and it should be given fair treatment.

In Pt. Parmanand Katara v. Union of India & Anr. (1995) 3 SCC 248, the Supreme Court dealt with a contention, wherein it was urged that the method of execution of death sentence by hanging under Punjab Jail Manual is inhumane and is violative of Article 21 of the Constitution (the Court, later on, rejected this very contention).

It was further argued that the requirement in the said Jail Manual, that the body of the hanged convict after it falls from the scaffolds is required to be suspended for a period of half an hour (even after the medical officer has declared the person to be dead), is violative of Article 21 since even a dead person has a right to dignity and fair treatment in respect of his dead body.

The Supreme Court therein upheld the said contention of the petitioner and held that the right to dignity and fair treatment under Article 21 of the Constitution is not only available to a living man, but also to his body after his death. The Supreme Court went on to state that the Jail authorities shall not keep the body of any condemned prisoner suspended after the medical officer has declared the person to be dead.

Not just that, if we talk about the religious practices of disposing of a dead body, the courts have also taken due care in upholding such religious rights of families of people who have died. It is to be kept in mind, and as we have observed, that the Document containing Guidelines issued by the Ministry of Health & Family Welfare, Government of India on 15th March 2020, does take into consideration, the religious rights of families of people who have died.

Further, in the case of Vareed Porinchukutty v. State of Kerala and Ors. 1971 KLT 204, it was held that practices which are regarded by the community as part of its religion are also matters of religion. In this case (Vareed Porinchukutty), it was held that the different modes of disposing of bodies (in different religions) are an integral part of their faith and while exercising this right, they only exercise their fundamental right under Article 25 of the Constitution of India regarding the practice of their religion. The relevant paragraph from the Judgment reads:

"22. Practices which are regarded by the community as part of its religion are also matters of religion. Among most of the Hindus disposal of the dead is effected by cremation but among Muslims, Jews and Christians it is done by burial. Right to bury dead bodies in a particular manner with particular rites and ceremonies in consecrated places is part and parcel of the practice of certain religions. Among Christians while rites at the time of burial consist in services expressed in words ceremonies consist in gestures or acts preceding, accompanying or following those words. Catholics, it is admitted that members of a party are Catholics, believe in the immortality of the soul and resurrection of the body. The practice of burying dead bodies with certain rites and ceremonies is an integral part of the Catholic faith. In burying dead bodies in consecrated places they only exercise their fundamental right regarding practice of religion."

In one of the Guidelines issued by the Ministry of Health & Family Welfare, it has been mentioned that religious rituals (minus actually touching the body) should be allowed. In fact, that particular guideline is an attempt to take into consideration, the religious practices of people belonging to difference sects/religions.

Not just religious practices, but Right to decent burial has also been recognised by the Indian Courts. In fact, in the year 2007, the Madras high court in the case of S.Sethu Raja vs The Chief Secretary (2007) 5 MLJ 404 had held in para 18 of the Judgment that by our tradition and culture, the same human dignity (if not more) with which a living human being is expected to be treated, should also be extended to a person who is dead and the right to accord a decent burial or cremation to the dead body of a person should be taken to be a part of the right to such human dignity.

Again, in Marimuthu vs State Criminal Appeal Nos.618/1995 and 620/1995, the Madras high court had observed that "Every human being is entitled to a decent disposal of his body after his death in accordance with his culture and tradition."

Burial versus Cremation: The Unnecessary Debate?

Dr Sailo, a 69-year-old doctor, the first coronavirus fatality in Meghalaya, passed away on 15th April. A tribal body in the state disallowed his burial after residents of Jhalupara in Meghalaya capital Shillong earlier stopped the cremation of the dead body to take place. This all happened because they feared that the virus would spread from the dead body.

A Public Interest Litigation was filed by the High Court of Meghalaya Bar Association in the Meghalaya High Court and on 16th April the Court took serious note of the obstruction caused to the funeral. The Court observed that this incident which happened on April 15 "shocked the conscience of every right-thinking individual".

There have been many reported instances where local residents have created obstruction in the burial/cremation of COVID-19 infected patients. On 2nd of April, a day after he tested positive of Coronavirus, Padma Shri awardee Bhai Nirmal Singh Khalsa passed away. The residents of Verka village in Amritsar district refused the body to be cremated. However, later on, the villagers provided separate land for final rites and the controversy was put to rest.

Sudhir Gupta, head of the forensic medicine department of the AIIMS, New Delhi, has been quoted as saying by news agency Press Trust Of India, that "Cremation of a person who has died due to coronavirus poses no threat through any methods -- using fire or electrical, gas or by burial."

On 24th of March 2020, when the World Health Organization issued a Document containing similar guidelines, it has also made it clear that people who have died from COVID-19 could either be buried or cremated. The document issued by it also mentions that the body of a COVID-19 victim is "generally not infectious".

It could be argued and as many doctors have also suggested, that the body of a COVID-19 victim remains contaminated even after his/her death, as the virus is still in the body. And so, the people who are handling the bodies for the last rites (including the medical team, religious persons and family members) could be said to be vulnerable.

However, it is altogether a different matter from whether we should actually allow the family members to choose the way in which they wish to dispose of the dead body of their loved ones. In fact, through guidelines and allied laws, we can restrict the number of people who could be allowed to attend the body of a COVID-19 victim and many state Governments have done just that.

In the end, it is important to reiterate that while the Guidelines issued by World Health Organisation & Ministry of Health & Family Welfare are quite clear about the fact that the body of a COVID-19 victim could be disposed of in any manner, the unnecessary controversies related to it does no good to the people who are already facing several problems across the globe and most importantly in India. 

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