This Blog is written by Ishika Khurana from Vivekanand Institute of Professional Studies, IP University. Edited by Ravikiran Shukre.
Violation of rights of the dead: Lack of cremation facilities amidst of COVID-19:
India is one of the hardest-hit countries from the coronavirus with about 240,000 cases and more than 6,700 dead. According to official figures, about 2,233 have died in Delhi.  Therefore, bodies of the people dying due to COVID-19 are very carelessly cremated.
The capital’s COVID fatalities are currently being handled by five facilities — NigambodhGhat, P.K. Road, Karkardooma, Punjabi Bagh and Lodhi Road. The first two is overseen by the North Delhi Municipal Corporation (NDMC), while the other three are being managed by the South Delhi Municipal Corporation (SDMC).
People have to wait for hours at the funeral. Also, ambulances are bringing four to five bodies at one time from the hospital. This can cause infection and transmission to others also whoever is around the dead body of a covid-19 patient.
A bench of Delhi High Court comprising of Justice D. N. Patel and Justice Prateek Jalan has taken suo motto cognizance and issued notice to the Delhi government and NDMA (National Disaster Management Authority) after a petition has been filed an NGO “Mokshda Paryavaran Evam Van Suraksha Samiti” which operates green crematoriums in the national capital, complaining about insensitive behaviour with the persons died because of COVID-19 and an advocate alleged that the bodies are lying in the same wards Lok Nayak Jai Prakash (LNJP) Hospital where COVID patients are kept and treated. The bench has found this as to be violative of Rights of the Dead and give time to AAP till 29 June to submit the report about their stand on this.
The Delhi Government health department issued an order on 30 May regards to the disposal of dead bodies due to COVID-19. This order contains directions like the body of COVID-19 positive/suspects patient is sent to mortuary within two hours of death in a hospital, and if family or relatives of those who have died contact the mortuary within 12 hours, the hospital shall schedule the cremation/burial within next 24 hours. If no one comes in contact with the mortuary in 12 hours, a message should be sent through SHO of the area about the details of the funeral. (NDTV, n.d.)
The Delhi government had also told the court that it has now authorised wood-fired traditional cremations, in addition to electric and CNG furnaces, providing personal protection (PPE) kits for all workers at crematorium and bodies and the working hours of crematoriums are extended to 7 AM-10 PM from existing 9 AM – 4 PM. Also, the Delhi government has made arrangements for traditional types cremations (wood -fire) and provided PPE kits to all the workers at the crematorium.
Also, some reports say that bodies are piling up at mortuaries because of the lack of space at crematoriums. There is limited resources (Wood pyres, CNG furnace, etc.) and lack of staff members to handle the dead body at the crematoriums. There is a lack of sanitization facilities at the crematoriums ground which can further lead to spreading of COVID-19. There were the reports that the Delhi hospitals are refusing to admit the suspect corona patients despite having enough bed to accommodate.
The Supreme Court bench headed by Justice Ashok Bhushan took a suo moto cognizance after a letter has been written by the former law minister Ashwani Kumar to the Chief Justice of India S. A. Bobde and other justices of the apex court highlighting news about the mishandling of the dead bodies of COVID-19 patients. In the letter, it was said that “Right to die with dignity”(Article 21) and “Right to decent burial or cremation” is a fundamental right of all the citizens, which is being violated. (Bar and Bench, n.d.)
STATUTORY PROVISIONS AND CASE LAWS
Article 1 of the Universal Declaration of Human Rights , all persons are born free and with equal dignity and rights. Many rights have been granted to the Indian citizens but at various instances, they are being violated. Many people don’t have access to even basic necessities of life i.e. clothing, shelter, food and education.
The State must human beings as nothing is bigger than humanity and ensure dignified disposal of dead bodies except in the cases when post-mortem or scientific investigation is needed of the body (in case of any murder or sudden death, etc.), in accordance with the law.
It is the duty of the State to ensure hygiene and cleanliness in the crematoriums or the burial place. There should be proper disposal of the bodies with religious rites and traditions of the dead person.
Section 3 (42) of the General Clauses Act  defines a ‘Person’ (as a legal entity recognized by the law) include any company or association or body of individuals, whether incorporated or not.
Section 11 of IPC  defines a Person. It says that this term includes any company or association, or a body of persons, whether incorporated or not.
In law, a person may be natural or artificial. Natural person refers to someone being created by God called as living beings (man, woman or child) and artificial person refers to something created by the human beings for their convenience or governance (corporation, company, etc.).
There is no indication given under any law or statute for inclusion ‘Dead person’ in the term ‘Person’. However, there are some rights which cannot be denied even after the death of a person. The Indian Succession Act, 1923 provides for execution of the will of a person, after his death. Under the Transplantation of Human Organs Act, 1994, a person has a right to protection of his dead body (as organs to be taken out or the body left to be mutilated) with the consent to the person when he is alive or consent of his closed relatives after his death.
Article 21  of the Indian Constitution is one of the most important Fundamental Rights which guarantees Life and Personal Liberty to each and every citizen. With time various judicial pronouncements have expanded the meaning of Article 21.
The term ‘Person’ in article 21 includes a dead person in a limited sense and the right to live with human dignity have an extended meaning to treat his body with the respect which he would have deserved, has he been alive.
In Munn v. Illinois, 1887,  the U.S. court for the first time expanded the meaning of Life and says that with physical existence it includes the quality of life also.
In Unni Krishnan v. State of Andhra Pradesh,  the Apex Court held that on the basis of earlier Judicial pronouncements Right to Life includes Right to privacy, Right to Shelter, Right to Information, etc.
In Common Cause v. Union of India, 2018,  the Court held that the fundamental right i.e. Right to life includes right to die with dignity.
In India, the law does not expressly state that burial/cremation of the dead is the responsibility of the state but it is interpreted by courts again and again in various cases from time to time. Section 404 of the IPC talks about dishonest misappropriation of the dead man’s property and called it an offence and is made punishable. Also, in Section 499 of IPC which deals with defamation, stipulates that libel or slander against a dead person also constitutes the offence of criminal defamation and is punishable. Section 503 of IPC which talks about criminal intimidation includes threatening a person with injuring the reputation of a dead person dear to him, as an offence. Section 297 of the IPC deals with the offence of trespassing on burial grounds etc.
The 2005 resolution on human rights and forensic science underlined the importance of dignified handling of human remains. It is important to ensure the proper management and disposal of the dead bodies.
In Ashray Adhikar Abhiyan v. Union of India,  the Supreme Court held that a deceased person who has no relatives or is homeless after death shall have a right to a decent burial as per their religious beliefs and the State has an obligation to ensure this.
In Ramsharan Autyanuprasi v. Union of India  and then in S. Sethu Raja v. The Chief Secretary,  the Supreme Court affirms its decision that a deceased person has a Right to decent burial and cremation. It was also highlighted that Right to live with dignity under Article 21 of the Indian Constitution is not only available to a living man but also to his body after his death.
In Sherman v. Sherman,  the Supreme Court of New Jersey held that under ordinary circumstances it is the right of the spouse or the other relatives of the dead person to claim the possession of the dead body. However, in the case, Wolf v. Rose Hill Cemetery Association,  the court held that the burial of the dead body is a matter of public importance as it is needed to be done in a proper way with all precautions according to the law and should not be left out completely to the wishes and desires of the spouse or closed relatives of the dead person.
Proper arrangements should be made by the government at the crematoriums as every human being, as alive or even after death cannot be disrespected by anyone and everyone has the right to live with dignity and also to die with dignity. Although, COVID-19 is a pandemic and many countries are fighting with this but safety and hygiene should not be put at stake. Proper disposal of dead bodies with rites and safety precautions is needed; otherwise, this may lead to spread of infection. Article 21 of the Indian Constitution is the most important right and it should not be violated in any situation.
(n.d.). Retrieved from NDTV: https://www.ndtv.com
(n.d.). Retrieved from Bar and Bench: https://www.barandbench.com
. As per Data available on 24th June 2020
. Act no. 10 of 1897
. Act no. 45 of 1860
. Article 21 of Constitution of India
. Ashray Adhikar Abhiyan v. Union of India [AIR (2002) SC 554]
. Ramsharan Autyanuprasi v. Union of India [AIR 1989, Writ Petition (Civil) no. 442 of 1988]
. S. Sethu Raja v. The Chief Secretary [W.P. No. 3888 of 2007]
. Sherman v. Sherman [330 N.J. Super.638(Ch.Div.1999)]
. Wolf v. Rose Hill Cemetery Association [832P.2d 1007(Colo.Ct.App.1991)]