4 Feb 2022 3:12 PM GMT
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...
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 disposed off only by sun rays.
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."
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-
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