Right to decent burial in the light of COVID-19

Updated: Jun 29, 2020

Authored by - Ms. Julia Anna Joseph

Designation - Student, Christ University

'Death is the mother of beauty. Only the perishable can be beautiful, which is why we are unmoved by artificial flowers'

Wallace Stevens

The world is currently facing a hard-to-escape drama of reality, none other than the deadly COVID-19. Each day has become a fight for survival for every single human being on the planet. In the haste of it all, are we disregarding to honour the Covid warriors who painfully succumbed to the disease?

The situation is different in different places. In China, the dead bodies immediately become like state property. The government undertakes to bury them, and at times, cremation happened right after the death, in the absence of family. Official orders were released on February 2, directing the local authorities to cremate bodies immediately, even if the family refused to cooperate with orders. Looking at Italy, COVID-19 has denied dignity to the dead. The virus is denying families of the chance to say a final goodbye to their loved ones. An emergency national law has placed a ban on funeral services in Italy too. In Sri Lanka, cremation has been made compulsory, and the government has disregarded the oppression of the Muslim community and has asked them to keep faith aside.

In India, a few days ago Sr. Adv. Ashwani Kumar submitted a petition at the Supreme Court to allow for suo moto cognizance of disrespectful disposal of dead bodies. In his letter, he mentioned that the indignity that the bodies face is a "grave infraction of the citizen's right to die with dignity". In the light of the pandemic, this issue is gaining traction all over. The Supreme Court on June 12 lashed out at State Governments and hospitals of the country for the manner in which the Covid dead bodies are dealt with and said that the situation in a few cases was worse than what animals have to suffer. Visuals from places such as Delhi, Maharashtra, and Puducherry are extremely cruel. Yet, every day, news channels broadcast videos of bodies thrown, denied burial space, patients chained to hospital beds etc., which brings us to thinking how ungrateful of their struggle that is. There are bodies being piled up in mortuaries, funerals being stalled in protest, family members being forced to flee with half-burnt bodies, nonfunctional crematoriums, and the like, which add to the list of how the right to die with dignity is being unacceptably violated. Rights of patients too are being infringed, as seen in the case of a deceased patient in Chennai who lay in a bed right next to a COVID-19 patient for nearly thirty hours, without being shifted to a mortuary facility. Many a time family members too are not informed promptly of the death of patients. Sometimes, hospital authorities undertake the duty of cremation of bodies, thereby making them unable to attend or conduct the ceremonious last rites. In the same backdrop, people have praised the COVID-19 warriors in their balconies with hoots and claps.

The former Chief Justice of India, Dipak Misra stated in his obiter dictum in the case of Common Cause v Union of India, 2018 that, “In a certain context, it can be said, life sans dignity is an unacceptable defeat and life that meets death with dignity is a value to be aspired for and a moment for celebration”. This is the value that the author wishes to respect in times of incessant deaths around the world. Also, in Parmanand Katara, Advocate v. Union of India & Ors 1989, the Supreme Court held that “We agree with the petitioner that right to dignity and fair treatment under Article 21 is not only available to a living man but also to his body after his death. We thus find that the word and expression ‘person’ in Article 21, would include a dead person in a limited sense and that his rights to his life which includes his right to live with human dignity, to have an extended meaning to treat his dead body with respect, which he would have deserved, had he been alive subject to his tradition, culture and the religion, which he professed. The State must respect a dead person by allowing the body to be treated with dignity and unless it is required to establish a crime, to ascertain the cause of death and be subjected to post-mortem or for any scientific investigation, medical education or to save the life of another person, the preservation of the dead body and its disposal in accordance with human dignity.”

Governments have belittled the issue as they are running the race to contain the disease. Amid the sharply rising cases, the deaths are no cause of worry. But as a rational human, anyone would believe in the dignity of a human being. And that right to dignity is not just conferred by the Constitution to be stripped away right after their death. This is because, in life and death, a human being is a human being. As much as we value one's life, we also learn to respect their death; because dying does not mean that the life lived by the body that held that soul hasn't left footprints on the planet.

Secondly, the rights of the family members of the deceased should also be considered. No person would wish for their relative to be buried or cremated hastily with no opportunity for a final heartfelt goodbye. They will be longing for that one last chance to kiss them goodbye. Although, to give the last kiss is against COVID-19 Funeral Protocol, the grant for a final sight is truly out of question. They will want to bid a farewell in the most respectable and ceremonious manner, to pay tribute to the valuable presence of the deceased in their life.

The legal framework of India supports the claims for the right to decent burial in this sense. The Supreme Court has reiterated that the Right to Life enshrined in Article 21 of the Constitution of India also includes the right to the decent burial. If one were to look at international law, it can be seen that the United Nations Commission on Human Rights has adopted a resolution in the year 2005, which underlined the importance of dignified handling of human remains. Also, the Geneva Convention, 1949 states in Article 16 that states, “As far as military considerations allow, each party to the conflict shall facilitate the steps taken to protect the killed – against ill-treatments". The Article in fact does not endeavour for a mere animal survival but for rights that entitle human beings to much more. In India especially, being a country that preserves its rich culture even in funerals, the cremation or burial of persons are considered important to mark their departure from this world.

Also in the light of the pandemic, it is to be noted that there's no scientific reason behind the haste in disposing bodies as there's no proven report that cadavers of patients communicate the disease, as stated by the Bombay HC. Additionally, organizations such as the WHO have in fact stated that there is no possibility of an airborne transmission of COVID-19. So in such a scenario, there isn't even a solid reason to back the disrespectful and demeaning disposal of patient bodies. Even under ordinary circumstances it is seen that the body is fenced by ropes and the public can view it only from a distance. They can't even do so much as touch the casket in which the body is placed, which is sorrowful enough. In this situation it is only acceptable if hospital authorities could wait for a reasonable period of time and then bury the body in a manner that dignifies the body.

Additionally, depriving burial spaces in family tombs owing to a fear of disease spread in community areas is also seen. It is because families preserve their culture and traditions of burying family members in certain spaces, and disallowing this is a breach of their right to conduct their family affairs as per their choice. For just as it has been aptly stated in the case of Ram Sharan Autyanuprasi v. Union of India 1989, "It is true that life in its expanded horizons today includes all that give meaning to a man's life including his tradition, culture and heritage and protection of that heritage in its full measure would certainly come within the encompass of an expanded concept of Article 21 of the Constitution". A death, although is a horrifying event, it is as important a day as their birth. Thus, these freedoms may be curbed only if there is some proven reason behind such restrictions.

Taking these arguments into account, it can be concluded that burial practices in India need to be done with further care and caution. The corpses cannot be left at the hands of hospital staff and authorities to simply be tampered with. It needs to be treated with dignity and respect, and the need to recognize the same is now.

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