Supreme Court Approves Revised Protocol Agreed By Centre & Parsi Body For Funeral Rites Of COVID Victims

Mehal Jain

4 Feb 2022 3:12 PM GMT

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Supreme Court Approves Revised Protocol Agreed By Centre & Parsi Body For Funeral Rites Of COVID Victims

In view of the agreement between Surat Parsi Panchayat Board and the Centre over the SOP for disposal of bodies of individuals of Zoroastrian faith who succumbed to COVID, the Supreme Court on Friday gave it imprimatur to the protocol of placing iron rods and grills above the towers of silence across India so that no bird can feed on the bodies and carry COVID strains and the bodies are...

For balancing religious sentiments with health concerns in the manner of last rites of Parsi Zoroastrians who have died in the COVID-19 pandemic, the Supreme Court had on January 17 requested SG Tushar Mehta and Senior Advocate Fali S. Nariman, for the petitioners, to confer with Union Health Ministry officials.

The bench of Justices D. Y. Chandrachud and Surya Kant was hearing a plea by the Surat Parsi Panchayat Board for a direction to permit it and its members to perform Dokhmenashini/last rites in Dokhmas of its members having died due to Covid 19, in accordance with their religious practices. The SLP was against the July 2021 judgment of the Gujarat High Court dismissing the petitioners' prayer for declaring the impugned 2020 Covid-19 Guidelines on Dead Body Management, issued by the Union Ministry of Health and Family Welfare, as ultra vires Articles 14, 19, 21, 25, 26, and 29 of the Constitution. "The impugned Guidelines issued by the Ministry of Health and Family Welfare considering the prevailing situation of Covid-19, in the larger public interest for the disposal of dead bodies by cremation or burial, could not be said to be violative of any fundamental rights of the Parsees, more particularly when such means of disposal of dead bodies is also in vogue in all parts of the country and when it is not anathematic and sacrilegious to the religious practices being followed by the Parsees", the High Court had held.

At the hearing on December 6, 2021, when notice was issued, Mr. Nariman had told the Supreme Court, "In Parsis, there are Nasheshalars, who are professional corpse-bearers. But the Guidelines do not mention any other mode of disposal of dead bodies, other than cremation and burial. Article 21 is not just for living people but also for post death...Now, there is a new strain of the virus. It is a live issue"

On Friday, the following protocol and SOP, as agreed between the petitioner and the UOI, was placed on record-

"1A. Dead bodies of the Parsi Zoroastrians who die of Covid 19 will be brought to the funeral parlour in the Tower of Silence complex and will only be handled by the Nassasalars- (professional Corpse bearers who have been professionally employed by the Panchayats). The corpse bearers are and will continue to be fully vaccinated and their temperatures duly recorded before every funeral and carrying out procedures of handling dead bodies as per existing COVID guidelines.

1B.Neither relatives nor friends are permitted nor will be permitted to touch the dead body and it will be ensured that they will always remain beyond 10 feet from the dead body.

2.The Nassasalars, at all times, while handling the dead body of the Parsi Zoroastrian COVID-19 victim will wear the PPE kit, gloves, face shield and N – 95 mask and the Govt of India regulations pertaining to dead bodies of COVID – 19 victims having been read and explained to them and they will be cautioned to follow the directives of the Govt. of India.

3.The body of the COVID-19 Parsi victim will be brought by the Nassasalars to the Tower of Silence Complex from mortuary or home in a body bag which will not be opened, but as per existing Guidelines, the face of the deceased will be allowed to be seen from a distance of at least 10 feet by the family only by unzipping the face – covering of the body bag.

4.The final funeral prayers i.e. the "GehSarna" (or Paidast) ceremony (which is the recitation of the first Gatha handed down by the Prophet Zarathushtra) over the dead body, is and will be by two Parsi Zoroastrian Priests wearing N-95 masks and gloves, who will stand at a distance of 10 feet from the dead body.

The final prayers (which last about 1 hour) will be completed and upon its completion, the Nassasalars will carry the body o the Dokhma (Tower of Silence) where no one except the professionally employed corpse bearers can enter.

As per Parsi religious traditions, no relative can touch, or much less kiss the body and every person at the funeral will perform hand hygiene after the funeral ceremony – a distance of at least 10 feet from the body will always be maintained. The individuals who will transport the dead body are the Parsi Nassasalars (the professional pallbearers) and no one else. Normally two Nassasalars will carry the body (in the body bag) to the Tower of Silence (Dokhma No.3) in a bier.

5.Relatives attending the Gehsarna (Paidast) ceremony will wear face masks and follow other guidelines as prescribed by the Government of India and will sit 10 feet away from the dead body and only such number of family members will be permitted to attend the funeral as per the applicable guidelines.

6.One Dokhma No. 3 has been set aside for Covid victims alone and used for performing religious ceremonies for dead bodies of Parsis COVID-19 victims. This Dokhma No. 3 will not be used for non-Covid-19 dead bodies.

7.Only Dokhma No.3 (in the Tower of Silence) will be used for dead bodies of Parsi Covid victims. And non-Covid victims' bodies will be placed in other Dokhmas i.e Dokhma No.1 and Dokhma No.2. Since the principal mode of disposal at the Tower of Silence is through strong and powerful rays of the Sun, and hence to deal with the problem of birds of prey, the Petitioner undertakes to install as soon as possible, a metallic bird net over Dokhma-No 3 – which is exclusively reserved for the dead Parsi COVID-19 victims; this will eliminate contact with birds and animals and will avoid any intrusion by vultures. Hence, there will be no exposure of the body to birds etc. once the metallic net gets installed over Dokhma-No 3.

8.Religious rituals such as reading from religious scripts, sprinkling holy water and any other last rites that does not require touching of the body are allowed.

9.After each ceremony, the entire funeral area/parlour will be washed, sprayed and disinfected. All PPE suits, masks and face shields will be disposed off and a new set will be used for each COVID-19 victim's funeral ceremony"

After perusing the aforesaid SOP, the bench on Friday passed the following order- "As a result of the intervention of the SG, an agreed protocol has been placed before the court. The protocol reads thus: (…). A request has been jointly made on behalf of the petitioner as well as the respondents that a final order be passed both on the special leave petition and consequently in the writ proceedings which became the subject matter of the judgment of the High Court. Since the dispute has been settled amicably and the court has been assured that the protocol and the standard operating procedure comports with the fundamental tenets of the Zoroastrian faith, at the same time maintaining the concerns which were expressed by the union government in the maintenance of all requirements of safety and hygiene in the context of the COVID-19 pandemic, we appreciate the fair stand which has been adopted by both the sides in ensuring that the issue which was raised before the Gujarat High Court and in continuation in proceedings before this Court has been amicably resolved. The protocol and the standard operating procedure are accordingly accepted and an order is passed in terms of the statement which has been jointly placed on record in these proceedings. The judgment of the division bench of the High Court shall accordingly stand set aside and the writ petition shall be governed in terms of the agreed statement which has been placed on record in these proceedings."

On January 11, the Court had directed- "Senior Advocate Fali S. Nariman, for the petitioner, has submitted a written note indicating the manner in which obsequial rites of Parsi Zoroastrians who have died as a consequence of the COVID-19 pandemic would be carried out. He submits that the proposed guidelines will sufficiently meet the concerns of the union Government. But, at present, the guidelines which have been issued by the union government in the Ministry of Health and Family Welfare do not take into account the concerns of the community. We have requested Mr. Tushar Mehta, Solicitor General of India, to render assistance by evaluating the proposed guidelines. Ms. Deepanwita Priyanka appears for the State of Gujarat. On the request of the SG, list on January 17."

On January 17, at the outset, the SG had submitted, "I have filed an affidavit pointing out that it may not be scientifically possible."

At this, Justice Chandrachud had put to the SG, "The petitioners have suggested a protocol. You can see now if you want to add something to the protocol or you can introduce additional safeguards to the protocol which will take into account the concerns. Of course, the union of India has valid concerns on account of public health and public well-being. If you can look at the protocol and make track changes to the protocol and share it with Mr Nariman's instructing advocate? Convene a meeting of the concerned officials of the Ministry of health and family welfare. See to what extent the protocol can be (unclear). Their broad theme is allowing religious observances to be completed. Your concern is not so much religious observances but health, so you can introduce some safeguards so that the central concerns of the Union of India are also accepted and their religious observances and the essential tenets of the Zoroastrian belief are also taken care of…One thing which perhaps can be done is if an informal, completely without prejudice, meeting could be held. In today's times, it would be in the video conferencing platform. If the SG could meet and Mr. Nariman could also meet. Let there be an exchange of ideas. Some way forward can be found. It is not adversarial."

On December 6, 2021, issuing notice on the plea, Justice Chandrachud had observed, "Some part of the rituals may have to be modified, considering the aspect of the corpse-bearers' health...there is a very interesting judgment of the Bombay High Court, by Justice B. N. Srikrishna, on the importance of obsequial rites. In connection with the issue of burial in the Dawoodi Bohra community, the judgment traces the history of burial and obsequial rites and how, since times immemorial, the same have been the very essence of a faith."

It had been submitted on behalf of the petitioners that respondent No.1 issued guidelines, namely "Covid-19 Guidelines on Dead Body Management", whereby two modes i.e. either cremation or burial are identified for the disposal of the dead body, who died due to Covid-19. According to the petitioners, the said guidelines are completely silent on the other mode of funeral/disposal of dead bodies and impliedly ignoring the other religious practices of other communities. Accordingly, the respondent authorities do not allow the Parsi community to follow their religious and customary mandates of the last rites of the Parsi, who died due to Covid-19 pandemic. As regards the religious practices of "Dokhmenashini", it had been stated that the Parsis across India since several centuries have practised "Dokhmenashini", wherein the dead body is kept at a height in a structure known as "Well/Tower of Silence" to be eaten by vultures and the remains being exposed to the Sun to be decomposed. The well is situated at a secluded place and would be accessible to "Nasheshalars", who handle the dead body and place it in the well. Most of the Parsees prefer Dokhmenashini for the final disposal of their dead bodies following their religious faith, however, on account of the Covid-19 Guidelines for the management of dead bodies, the Parsees are not allowed to perform their last rites Dokhmenashini as per their religious faith.

The prayer before the High Court were as follows-

(a) Admit and allow this petition by passing an appropriate order, direction and/or writ directing the authority to permit the petitioners and its members to perform Dokhmenashini/last rites in Dokhmas of its member having died due to Covid 19, in accordance with their religious practices which is duly protected by the Constitution of India

(b) Be please to declare that the Guidelines do not prohibit the Parsees to perform the last rites of any of its member died due to Covid 19 in accordance with their religion.

(c) If the Guidelines is interpreted to prohibit the Parsees to perform the last rites in accordance with their religion of its member died due to Covid 19, be pleased to declare the Guidelines being ultra vires Articles 14, 19, 21, 25, 26, and 29 of the Constitution of India.

(d) Pending admission and final hearing of the present petition, the respondents, their officers, servants and agents be restrained from creating hurdles in the exercise of the fundamental rights of the petitioners and their members to perform Dokhmenashini/last rites in Dokhmas even with regard to any of their members died due to Covid 19.

The High Court noted, "At the outset, it may be noted that the petitioners have sought the indulgence of the Court for declaring the impugned Covid-19 Guidelines on Dead Body Management, issued by the Ministry of Health and Family Welfare, Government of India, on 15.3.2020, by filing the present petition in May 2021 when the severity or the ordeal of Covid-19 had substantially subsided. When the petition was being heard, the curve had almost flattened. Since the Court was of the opinion that the issue raised in the petition had become academic, Mr. Pandya was specifically asked by the Court as to how many Parsees as on the date were on the death bed due to the Covid-19, who were likely to be deprived of their practising Dokhmenashini because of the impugned guidelines, however, Mr. Pandya was unable to answer the query of the Court. It is well settled proposition of law that the High Court does not undertake to decide an issue unless it is a living issue. If an issue has become purely academic, the Court would not engage itself in deciding it."

In the impugned judgment, the High Court further observed, "Apart from the fact that the issue raised in the petition has become academic, there is no substance in the merits of the petition also. The impugned guidelines have been issued by the Ministry of the Health and Family Welfare Department in the wake of Covid-19 Pandemic on the management of dead bodies, in order to prevent the further spread or covid related infection. Such guidelines issued in the larger public interest considering extraordinary circumstances prevailing in the country, would take precedence over the individual interest as also over the religious faith and belief of a particular class of community. The safety and the welfare of the State is the supreme law as comprehended in the legal maxim - "salus populi suprema lex". Even the fundamental rights to profess, practice or propagate religion, and the right to manage religious affairs, as enshrined under Articles 25 and 26 of the Constitution of India, are subject to public order, morality and health. The Supreme Court recently in the Suo Moto case relating to holding of annual Kanwar Yatra amid Covid-19 Pandemic has observed in the order dated 16.7.2021 that 'The health of the citizenry of India and their right to "life" are paramount. All other sentiments, albeit religious, are subservient to this most basic fundamental right'..."

Case Title: The Surat Parsi Panchayat Board & Anr. v. Union Of India & Ors.

Citation : 2022 LiveLaw (SC) 149

Click here to read/download the order

Supreme Court Approves Revised Protocol Agreed By Centre & Parsi Body For Funeral Rites Of COVID Victims

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