Whether the relatives & friends of Patients admitted in Hospital/Hospitals with Covid-19 or Patients having contracted the disease whilst in Hospitals after getting admitted for some other malady, and who subsequently passed away, can be deprived to have a last look at or to pay last respect to the mortal remains of the dead person and to perform the last rites?
 
Bidding farewell to the dead through funeral rites was one of the earliest signs of civilization. Although funeral practices have changed with time, bereavement is still an event. People wish peace for the dead through rituals according to their cultural and religious beliefs; it is a way of coping with the unknown. Social bonds are confirmed in the period of mourning through sharing and support. It is understandable that a pandemic would disrupt these systems, especially when the disease causing it is infectious. It is as though the roots of society are being torn apart, for the cultural and psychological damage caused by this unprecedented crisis is incalculable. 
 

Article 21 of the Constitution of India states that:

No person shall be deprived of his life or personal liberty except according to a procedure established by law.

According to Bhagwati, J., Article 21 embodies a constitutional value of supreme importance in a democratic society. Iyer, J., has characterized Article 21 as the procedural magna carta protective of life and liberty.

Article 21 of the Constitution of India prohibits the deprivation of the above rights except according to a procedure established by law. Article 21 of the Constitution of India corresponds to the Magna Carta of 1215, the Fifth Amendment to the American Constitution, Article 40 (4) of the Constitution of Eire 1937, and Article XXXI of the Constitution of Japan, 1946.

This right has been held to be the heart of the Constitution of India, the most organic and progressive provision in our living Constitution, the foundation of our laws.

Article 25 of the Constitution of India deals with Right To Freedom Of Religion And Rights Of Minority. Besides religion and conscience, there appears three significant expressions used under Article 25 of the Constitution of India, namely, profess, practice and propagate. Right to profess means freedom of unhampered expression of spiritual conviction in words and action which one may articulate or confess or acknowledge or agree or allow or own or recognize as per one’s religion and conscience. Freedom of practice means individual’s right to give it expression in forms of private and public worship.

Rituals, ceremonies, observances and functions are integral parts of a religion and freedom to practice such rituals and ceremonies are included in religious practices. The only test to determine whether a given religious customary practice is an integral part of a religion or not would be whether such custom is regarded by the community following the religion or not. The right to propagate one’s religion means the right to communicate or disseminate or spread or broadcast or proliferate or transmit or publicise one’s beliefs and faith to other persons through congregation or public discourse or public meetings.

At National level, the subject of ‘Health’ does not appear in many places of the Constitution of India, there are indirect and tacit references to health of the people and the role the State has to play in the development of health of the people. Article 47 of Directive Principles of State Policy (hereinafter DPSP) - states that improvement of Public Health is one of the primary duties of State.

Also, under Schedule VII powers relating to ‘Public Health Care’ and ‘Burial & Cremation Grounds’ is under the State List. Therefore, the State Governments have the discretion to formulate laws regarding protection of Public Health & Management of Burial & Cremation Grounds. Deriving powers from the Seventh Schedule, various State Governments passed Regulations in response to COVID-19 in furtherance to the Epidemic Diseases Act.

For example: The West Bengal Epidemic Disease, COVID 19 Regulations, 2020, The Maharashtra COVID-19 2020, The Delhi Epidemic Diseases, COVID-19 Regulations, 2020, the Odisha COVID-19 Regulations, 2020, the Uttar Pradesh Epidemic Diseases, COVID-19 Regulations, 2020, the Bihar Epidemic Diseases, COVID-19 Regulations, 2020, the Gujarat Epidemic Diseases, COVID- 19 Regulations, 2020, etc. Apart from these State Regulations, there are two national legislations which are relevant for COVID-19 Pandemic. The Epidemic Diseases Act, 1897 is one of the laws which were first enacted to tackle bubonic plague in Mumbai in former British India.

This Act is meant for containment of epidemics by providing special powers that are required for the implementation of containment measures to control the spread of the disease. On April 22, 2020, the Epidemic Diseases (Amendment) Ordinance, 2020 was promulgated. The Ordinance amends the Epidemic Diseases Act, 1897 and seeks to protect its Health Care Personnel, Clinics and other facilities.

The Second piece of legislation is Disaster Management Act, 2005 under which the Guidelines on Management of Biological Disasters, 2008 were passed. The 2019 National Disaster Management Plan, also deals with Biological Disaster and Health Emergency. This is the broad legal framework within which activities to contain COVID-19 are being carried out by the Union and State Governments. Similar Guidelines were passed by Ministry of Health & Family welfare which specifically dealt with the management of dead bodies. But all the relevant guidelines and legislations have their own limitations and they fail to address the issues raised above.
                   
By and large, whether it is for a theist or atheist, freedom of conscience and free profession and practice of religion is protected under Clause (1) of Article 25 of the Constitution of India.

The term Religion in that Clause need not necessarily be linked to any particular religion as is understood as a religious denomination. It is a matter of faith and of one’s own conscience which could trigger the profession and practice of what may be religion in the larger sense to a particular individual. With this concept in mind, it needs to be delineated that it is not the religious practices of the different religious denominations which matter in such instances.

It is a matter of connectivity with the person who has died and the near relatives may be in whatever degree of relationship. Fundamentally, human relationship between the Parent and Child, Husband and Wife, Grandparent and Grandchild, etc. is not based on any religious tenet. It is a matter of faith and conscience of every individual. If such a person is to take recourse to any practice and free profession on the foundation of freedom of conscience in terms of Clause (1) of Article 25 of the Constitution of India, it could get abridged only by the reciprocal covenant that such activity should be subject to public order, morality and health and to other provisions of Part III of the Constitution of India. This is the inbuilt mode of controlling such activities even in terms of Clause (1) of Article 25 of the Constitution of India.

The eligibility of a person to perform the funeral rites, be it connected to cremation or burial, may be sometimes guided by factors which may be akin to accepted practice even in religious denominations. The varied practices among the Hindus as a whole or different denominations of Hindus, one thing is clearly certain; the facility to provide ritualistic offerings by way of water, flowers or even certain grains are quite often seen as fundamentally for the satisfaction of the person making such offer to the dead before burial/cremation, as the case may be.

Post-Cremation rites including, receiving the mortal remains in the form of ashes and bones which are treated as sacred to the near relatives of the departed and further handling of those materials in accordance with faith and belief also stands accepted in such communities (profitable reading in this regard can be had from Garuda Purana, Vishnu Purana and other ancient Hindu texts and scriptures).

In so far as Christians are concerned, if one were to look at different denominations, it can be seen that there are practices, which may with slight variations, generally provide for prayers before the dead bodies are disposed of by burial and by offering prayers even after disposal on different dates and times depending upon the faith, belief and practice in different Churches. A perusal of canons would show that different ritualistic processes are delineated for such matters.

The mention is being made only to indicate that there are different practices available. In so far as the Muslims are concerned, whatever, be the difference in beliefs and practices among the Hanafis, who are treated as a majority group of Sunnis in India, on one hand, and the Shias on the other hand, one clear thread of connectivity is the faith and belief that the disposal of human remains is a must as well as post Kabar (Burial) rituals (Certain passages from Al-Bahr-ur-Raiq will buttress this aspect). The family also intends to have its own practices carried forward to the extent it relates to their faith and belief.

It only demonstrate that by and large the Indian community always has the desire for intricate practices in the form of rituals with the participation of near relatives of a deceased, following what could be permissible under given circumstances. The restrictions that can be imposed in respect of Public Order, Morality and Health and to the other provision of Part III of the Constitution of India necessarily provide room for fair provision for relatives of the deceased persons to participate to the extent possible in the funeral of a deceased, subject to the respective norms.

It is delineable as part of human rights. The legislative purpose and intention behind putting the Disaster Management Act, 2005 in place is to provide a piece of legislation which could be treated as annihilative in nature. The whole concept of Disaster Management and the regulatory provisions which can be generated within the domain of Disaster Management Laws are to be treated, understood and applied as shield to energize and enable better governance in the wake of disaster by following Preventive Management, Protective Management and Post Disaster Curative Management of all such situations.

In this spectrum of reasoning, the constitutional aspirations of the people in a civilized society cannot be discounted except when and unless it becomes disorderly behaviour which would infract the Public Order, Morality and Health. Reverting to the principles emanating out of the Constitution of India, as held by the Supreme Court in [Budhadev Karmaskar Vs State of West Bengal, AIR 2011 SC 2636], the word life in Article 21 of the Constitution of India means a life of dignity and not just an animal life.

The transition of the concept of animal life to lead a life with dignity which is expected for a human life necessarily postulates the freedom of the individual to maintain for him/her and enjoy the universal concept of love and devotion to the near and dear ones and also to suffer sorrow and do such things which would alleviate sadness which emanates out of unfortunate events.

In maintaining just and reasonable human relationship built on human and constitutional values, we may also bear in mind that it is among the Fundamental Duties of citizens in terms of Article 51-A of the Constitution of India to promote harmony and spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities to renounce practices derogatory to the dignity of woman; to value and preserve the rich heritage of our composite culture.

Burial and disposal of a decedent person carries some rights and duties with himself/herself. One of them is that, if a married person dies, the custody of the remains and burial lies with his/her spouse. [Radomer Russ-Pol Unterstitzund G Verein Vs Posner, 176 Md. 332 (Md. 1936)].

There is no right of property in a dead body in the ordinary sense, but it is regarded as property so far as necessary to entitle the surviving spouse or next of kin to legal protection of their rights in respect to the body.[Lubin Vs Sydenham Hospital, Inc.,  181 Misc. 870 (N. Y. Sup. Ct. 1943)].

The traditional belief in our country is that unless the last rites are performed before the Burial/Cremation, the soul of the deceased shall not rest in peace. This belief is deep rooted in our country. It also has an emotional and sentimental aspect. Hence, the family members of a deceased who was infected with Covid-19 should not be deprived of the right to perform the last rites of the deceased, subject to them taking all necessary precautionary measures.

In terms of Article 243-G of the Constitution of India read with the 11th Schedule and Article 243-W read with the 12th Schedule of the Constitution of India, Public Health, Sanitation Conservancy, Burials, Burial Grounds, Cremations, Cremation Grounds and Electric Crematoriums are matters that fall within the domain of self-government institutions, be it a Municipality or a Panchayat.

Referring to the aforesaid provisions of law shows that the legislature has imposed duties on the local self-government institutions to maintain hygiene in the public domain and has empowered such institutions to take appropriate measures to combat the menace of an epidemic or deadly disease. However, these powers must be exercised by the donees of such powers responsibly and by ensuring that the rights of the citizen which are recognized by law, are not jeopardized or curtailed unnecessarily.

The right of the family of a Covid-19 victim to perform the last rites before the Cremation / Burial of the deceased person is a right akin to Fundamental Right within the meaning of Article 21 of the Constitution of India. While exercising their power to impose restrictions on citizens in their way of life in the wake of outbreak of an endemic like Covid-19, a fine balance must be struck by the State and the local self-government institutions so that the aforesaid right of a citizen to perform the obsequies of his/her near and dear ones does not stand abridged or abrogated excepting for very compelling reasons.

It can be concluded safely that the immediate family members of Covid-19 victims can’t be deprived to see the body for one last time and perform religious rituals, such as reading from Religious Scripts, Sprinkling Holy Water, Offering Grains and such other last rites that do not require touching of the body and to collect the ashes for last rights while complying with the constitutional obligations under Articles 21 & 25 of the Constitution of India in so far as the management of the rights of Covid-19 deceased persons are concerned.

Written By: Dinesh Singh Chauhan, Advocate - High Court of Judicature, J&K, Jammu
Email: [email protected]; [email protected]