Constitutional Law

Right to Dignified Death – An Analysis with reference to Covid–19

By Advocate Raja Chaudhary & Manvee

Introduction

“The family of Deceased Shahabuddin Sahab wants to do his perform his last rites in Siwan. The authorities are not allowing it and are not handing over his will to the housemates. Shahabuddin Saheb was not treated properly. He was placed with a COVID-19 patient.”

“At least their condoling family members should not be stopped from doing their last rites according to their rituals. It is obvious that they will implement all the precautionary measures of COVID-19.”

Says Asaduddin Owaisi on his Twitter handle by condoling the death of Mohd. Shahabuddin. Death is a bitter truth from which no one can deny, no one is mortal in this world. It is a universal truth “Who is born, has to die one day” but one of the most important aspects regarding this is the Right to die a dignified death which includes cremation or burial in a dignified manner. What does dignified death mean here is a matter of concern for everyone. The concept means that the deceased should be appropriately given his final rites according to his religious rituals, in general, dignified death for people means where I was born, will die in the same place or cremated/buried in the same place. But we are not seeing that happen with the deceased Mohd. Shahabuddin, it is clear from the tweets of Mr. Owaisi that the corpse of the deceased was not handed over to their family for performing the last rites of the deceased at his native place which comes under the right to a dignified death. The authorities gave the reason for not handling the cadaver to the family of the deceased that he died from Covid – 19. But that doesn’t mean that his family won’t take care in handling the corpse of Shahabuddin. Everyone in the country is aware of the Covid – 19 protocols for performing the last rites of the patients who succumbed to coronavirus. Then why corpse of Shahabuddin was not handed over to his family & why his last rites were performed in Delhi instead of his native place Siwan, isn’t this violation of the Right to dignified death? This is a debatable topic and a matter of concern to look for.

Cognizance of Courts on the Issue

In a recent judgment which Calcutta High Court issued on 16th September 2020, its guidelines that Covid – 19 victims have the right to decent burial as per religion under articles 21 & 25 of the Indian Constitution.

The court is of opined after the observation that the Right to dignity & fair treatment under Article 21 of the Constitution of India is not only available to a living person but it also remains the same for his mortal remains after his death, the court said that right to live a dignified life extends up till the death of the person which includes a dignified procedure of death.

Moreover, the court also observed that cultural & traditional aspects are essential to the corpse of the deceased. The bench said that under Article 25 of the Indian Constitution, the right to a decent funeral can be traced. Article 25 of the Indian Constitution talks about freedom of conscience and free profession, practice, and propagation of religion subject to public order, morality, and health. The court also observed that in India there is a traditional belief that unless & until last rites are performed before the cremation/burial of the deceased, the soul wouldn’t rest in peace either.

The court also noted that due to the reason that the deceased was infected to covid – 19, the family members shouldn’t be denied to perform the last rites of the person as there is traditional and cultural belief is associated with it. The family of the deceased is subjected to take all the precautionary measures while performing the last rites.

Problems Regarding the Burial/cremation in Covid – 19 pandemic

Covid – 19 has created many problems as well for the rights of dead bodies. There are several incidents about the mishandling of the dead bodies such as families keeping the infected corpse at their home to pay last respect to the deceased, few families even have refused to accept the infected dead bodies of their loved ones. Recently in Chattisgarh, it was found that the dead bodies of the covid – 19 infected patients were allegedly carried by garbage van. Another incident which took place in Madhya Pradesh where a corpse of covid – 19 infected person fell out of the ambulance, this clearly shows the mishandling of the dead bodies of the departed souls.

Day by day petitions are increasing in the courts regarding the safe disposal and management of Covid infected corpses. According to the Covid – 19 guidelines on Dead body Management which were issued by the Ministry of Health on 15th March 2020 states that

  • Large Gatherings must be avoided
  • The Family of the deceased is not allowed to kiss, hug or touch the cadaver
  • Social Distancing is a must while performing the last rites in the crematorium or burial ground.
  • An only a limited number of people are allowed in the last rites ceremony.
  • The corpse must be handled with proper precautions by the medical staff & family members.
  • Autopsies should be avoided on the corpse who succumbed to coronavirus.
  • Embambling of the corpse is not allowed.

These were some of the most important protocol issues by the Health Ministry of India for regulating the final rites of the deceased.

Conclusion & Recommendation

As we saw in the judgement of Calcutta High Court dated 16 September 2020, which stated that Covid – 19 victims have the right to decent burial as per religion under articles 21 & 25 of the Indian Constitution,the court was also of the opined in this judgement that the Infected Corpse of the deceased should be directly taken to crematorium or burial ground from the hospital, not anywhere else, but we are aware of the fact that how people are waiting the queue for hours for cremating/burying their loved ones, the main reason behind this pertaining issue is most of the people dying in these cities are migrants from small villages & towns, only few of them are localites, so in order to get rid of this situation the government can make protocols for transporting the corpse of the deceased to their native place crematorium either by road or by airways, so that they can be a part of dignified death, as I mentioned earlier that people have emotional attachment from their homeland. This is a possible way to regulate the overcrowding of corpses in the crematoriums and burials in the metropolitan places such as Delhi, Mumbai, Kolkata, etc. 

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