The Kerala High Court on Thursday (19th November) refused to issue any direction to the State Government or the Union Government to overlook its Guidelines (COVID Protocol) and to follow the guidelines of the World Health Organization.
The Bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly was hearing Public Interest Litigations filed by members of Muslim community, basically seeking direction to the respondents (State and its officials and the Union of India) in regard to the management of the dead body of COVID-19 patients on the basis of the guidelines issued by the Government of India , World Health Organisation etc.
"i) issue a writ of mandamus or any other appropriate writs, orders or directions commanding the respondents to dwell upon the request of the Islam community to revisit the guidelines issued in Ext.P1, taking into account the relevant inputs suggestive of the fact that SARS-CoV-2 Virus will not spread from dead body;
ii) Issue a writ of mandamus or any other appropriate writs, orders or directions commanding the respondents to permit washing of dead body and shrouding of dead body, in accordance with the rituals in Islam community, ensuring health security of general public."
Contentions of the Petitioners
The basic contentions advanced by the writ petitioners were that the State of Kerala was not following the Standard Operating Procedure recommended by the Union Ministry of Health and Family Welfare as well as the World Health Organization.
It was submitted that guidelines issued by the Union of India have to be practically followed.
It was argued that the family members of the person who is hospitalized are not allowed to meet the patient as soon as he is admitted to the hospital and therefore, the family is not aware of as to what type of treatment is being given to the patient and what is the progress of his/ her health.
That apart, it was also submitted that as soon as the patient dies, the hospital packs the body in plastic sheets and calls the Health Department, but the family of the deceased is called only for the purpose of making the payment of hospital bill amounting to a few lakhs of rupees.
It was also their predominant contention that the dead body is not shown to the family and once the payment is effected, the Health Department takes the body away for cremation/burial, which is totally barricaded by the Police, having no public access.
Again, it was contended that not a single family member is allowed to see the dead body and no one is allowed to enter into the area where cremation/burial is conducted and the family members are prevented from seeing the body or face of the deceased.
Advocate Harris Beeran appearing for the petitioner in one of the writ petitions, contended before the Court that the World Health Organization has issued protocol and in accordance with the same, there is no prohibition for performing the last rights of a deceased person and to wash the dead body
Therefore, it was prayed that Court issues directions to the State Government to take into account the guidelines issued by the World Health Organization in respect to burial and cremation, so as to eliminate the grievances highlighted by the family members of any deceased, consequent to COVID – 19.
The Court observed that the guidelines are issued by the Union Government taking into account the fact situations prevailing in India and after securing necessary inputs and information from the respective stakeholders in regard to management of the dead body of COVID–19 patients.
Further, the Court observed,
"Exercising the power under Article 226 of the Constitution of India, this Court is not expected to overturn the guidelines or making additions to the guidelines without taking note of the exercise already undertaken by the Union Government before issuing the guidelines for management of the dead body of COVID – 19 patients."
The Court also took into account that in the guidelines of the Government of India and the State of Kerala, specific instructions are given with respect to performance of last rights of a deceased COVID -19 patient, and that clear prohibitions are created thereunder from touching the body and washing.
In this backdrop, the Court observed,
"We cannot substitute the said protocol and permit either the relatives or issue directions to the staff of the hospital or any other department to wash the dead bodies."
The Court further observed
"In a welfare State like India, where the duty of the State to look after the welfare of the community as such is more predominant than any individual or vested interests, especially in a pandemic situation like the present one. Said so, we have no second thoughts to say that the rights of an individual, however, high and precious at times has to be sacrificed to serve the best interest of the citizens at large and pave way for convenience, rather than making any pedantic and narrow approach to the issue."
Taking into account all the aspects, the Court said,
"We do not think, we need to issue any direction to the State Government or the Union Government to overlook the directions contained in the guidelines as above and to follow the guidelines of the World Health Organization."
Therefore, the writ petitions were disposed of directing the State Government "to strictly follow the guidelines issued by the Union of India and the State Government in the management of the dead bodies, and to make necessary arrangements for the performance of the last rights in accordance with the relevant guidelines".
Case title - Muhammed Haleem K.K v. State Of Kerala and others [WP(C).No.23237 OF 2020(S)]