Post Death Rituals Should Be Brought Under Govt Policy To Prevent Caste Discrimination, Enable Dignified Last Rites: Rajasthan High Court

The Rajasthan High Court has said that "dignity of an individual" after death is hampered due to demarcation of cremation places based on "caste" or other grounds, remarking that it was high time that the State formulated a uniform policy equally applicable to all citizens for a public place to perform post-death rituals.While hearing a petition filed by the Kanchan Patil (Mirasi) Samaj on not being allowed to use a public land by State for conducting last rites, the division bench of Dr. Justice Pushpendra Singh Bhati and Justice Bipin Gupta, held that despite fraternity being one of the foundational principles of the nation, the present case was a stark reminder of how far the social reality was from this constitutional vision."It is, thus, high time that the State formulates a uniform policy to deal with the burial/cremation/shamshan/any kind of public place utilised for the purpose of performing post-death rituals. The bifurcations on the basis of caste and religion have created havoc, as some may feel entitled over such places while others may feel deprived. The performance of post-death rituals ought to be brought into the realm of a comprehensive State/Union policy, so as to enable dignified performance of the last rites which remain socially essential even after death, as the body is still in existence"The court emphasized that dignity of an individual is directly hampered because of "the haphazard and vague approach" of the State. It observed that in some areas, burial/cremation grounds are demarcated on the basis of caste and sub-caste divisions, while in other areas they are segregated for smaller groups. It thus opined that time has come for the State to adopt a common policy equally applicable to all citizens, while taking into account the requirements of various beliefs that different segments of the population may hold.Referring to principles enshrined in the Constitution of India as well as International Conventions the bench said:“These principles flow directly from the constitutional guarantees under Articles 14, 15, 21 and 25 of the Constitution of India, and the statutory duties cast by Section 275 of the Rajasthan Municipalities Act, 2009 and Section 104 of the Rajasthan Panchayati Raj Act, 1994. When viewed in light of international obligations, it becomes evident that denial of access to cremation/burial grounds does not merely violate domestic constitutional mandates but also places India in breach of its international commitments to uphold human dignity.”The origin of the Samaj was the Jasnathi Jat community which, in the 18th century, had embraced Sufi Islam. However, their customs relating to marriage, birth, death, etc, continued to be consistent with the traditions of the Jasnathi Jat community. Due to this distinct identity, the members of the Samaj were prohibited from using the graveyard for last rites. It was argued by the petitioner, the land in question was a public land designated for the purpose of cremation and burial, and hence, no community could claim an exclusive right over the same. However, in practice, the Rajasthan Muslim Waqf Board had assumed control over it, and was restraining the Samaj from using it. On behalf of the Rajasthan Board of Muslim Waqfs, it was argued that by long and continuous use, the land in question had assumed the character of a waqf property, and was intended for the benefits of persons professing the Muslim faith. After hearing the contentions, the Court frowned upon the manifestation of how deeply rooted the discrimination continued to be in society that even the mortal remains of an individual had become the cause of strife. The Court opined that as per Section 275 of the Rajasthan Municipalities Act, 2009 that casted duty to maintain and regulate burial and cremation grounds, read with the Section 104 of the Rajasthan Panchayati Raj Act 1994 that empowered framing of bye-laws for regulating the manner of disposal of dead bodies, reflected legislative intent that management of cremation and burial grounds had to be by the public authorities in collective interest of community. Furthermore, the Court reflected how the act of sectorial controls over such lands leading to exclusion of others was, violative of the rights to equality under Article 14, discriminatory under Article 15, violative of the freedom of religion under Article 25, and altogether violative of the right to dignity after death under Article 21 of the Constitution of India. The Court also highlighted the global recognition of dignity of death as an inseparable component of human right. Reference was made to the Geneva Conventions of 1949 mandating honourable burial of the dead; freedom of religion and rights of minorities to practice their customs propounded under the International Covenant on Civil and Political Rights (1996), as well as the holding of the European Court of Human Rights that denial of dignified last rites violated the right to private and family life....

Post Death Rituals Should Be Brought Under Govt Policy To Prevent Caste Discrimination, Enable Dignified Last Rites: Rajasthan High Court

Nupur Agrawal

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