[COVID Victim's Last Rites] 'Only 6 Family Members Allowed To Escort Dead Body', Calcutta HC Modifies Its September 16 Judgment [Read Order]

The Division Bench of Chief Justice T B Radhakrishnan and Justice Arijit Banerjee modified its 16th September Judgment after hearing the petitioner in person and learned Advocate General for the State.

It may be noted that in its 16^th September Judgment, the Court took a firm view that the right of the family of a COVID- 19 victims to perform the last rites before the cremation/burial of the deceased person is a right akin to Fundamental Right within the meaning of Article 21 of the Constitution of India.

The bench had also emphasized that traditions and cultural aspects are inherent to the last rites of a person's dead body, and that the right to a decent funeral can also be traced in Article 25 of the Constitution of India which provides for freedom of conscience and free profession, practice and propagation of religion subject to public order, morality and health and to the other fundamental rights under Part III of the Constitution.

Significantly, by way of Monday's order, paragraph (i) and (viii) of the Judgment delivered on 16^th September have been modified.

Paragraph (i) in 16^th September Verdict - When post mortem of the dead body is not required, the dead body shall be handed over to the immediate next of kin of the deceased i.e. the parents/surviving spouse/children, after completion of hospital formalities. The body should be secured in a body bag, the face end of which should be preferably transparent and the exterior of which will be appropriately sanitized/decontaminated so as to eliminate/minimize the risk to the people transporting the dead body.

Modified Paragraph (i) in 21st September Order - When post mortem of the dead body is not required, the dead body shall be handed over to the immediate next of kin of the deceased i.e. the parents/surviving spouse/children; which shall be not more than six persons; after completion of hospital formalities, for being taken to the burial ground/crematorium directly. The body should be secured in a body bag, the face end of which should be transparent and the exterior of which will be appropriately sanitized/decontaminated so as to eliminate/minimize the risk to the people transporting the dead body. (Words in bold signify the modification)

Paragraph (viii) in 16^th September Verdict - The persons handling the dead body shall go directly from the hospitals to the crematorium/burial ground, as the case may be, and not to anywhere else including the home of the deceased where he/she last resided.

Modified Paragraph (viii) in 21st September Order - The persons handling the dead body shall go directly from the hospitals to the crematorium/burial ground as may be indicated by the State/LSGI officials, as the case may be, and not to anywhere else including the home of the deceased where he/she last resided." (Words in bold signify the modification)

It may further be noted that the Calcutta High Court on Monday (21st September) turned down the State Health Department's plea, seeking a modification of the 16^th September Division Bench Judgment that directed the Department to hand over the bodies of COVID patients to the next of kin.

Advocate-general Kishore Datta had moved a petition on behalf of the Principal Secretary of the State Health Department and argued that "the system may create a health hazard for other people. So, the court should modify its order and let the department conduct the last rites. The court can allow the patients' relatives to see the body in the hospital."

However, the bench refused to accept the health department's plea but it was stressed in the order that the next of kin of a COVID patient would have to take the body straight to the nearest crematorium or burial ground from hospital and not to anywhere else including the home of the deceased where he/she last resided.

Further, it was also reported that the Kolkata Municipal Corporation (KMC) had decided to approach ICMR for advice after the Calcutta High Court's 16^th September Judgment.

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