Dignity to Dead??
Right of Dead Persons
Authors: Paras Batra and Yashu Rustagi, Faculty of LawUniversity of Delhi
An unheard message from the dead:
“I lived my whole life following others’ wishes. Let me follow my own wish in my death.”
Recently what we have witnessed is undignified treatment and disposal of the dead bodies of Covid-19 patients. This amounts to grave infractions of the citizens ‘right to die with dignity.
There are various instances like a dead body being thrown in a pit for burial in Puducherry, reports of piling up of bodies in hospitals and mortuaries in the capital, non-availability of adequate burial grounds/cremation and nearly 200 dead bodies were found unclaimed, uncounted, and unidentified on the bank of river Ganga, which all constitute a clear and unacceptable violation of the right to die with dignity.
Even, the former Union Law Minister Ashwani Kumar has written to the Supreme Court to take suo motu cognizance of such actions. He said that the fundamental right to die with dignity embraces the right to decent burial or cremation.
The Preamble of our Constitution states that we, the people, have resolved to secure social justice to all citizens.
The Supreme Court through several decisions creatively illustrated in matters pertaining to human rights and dignity and relied heavily upon Article 21 of the Constitution. Article 21 provides that “No person shall be deprived of his life or personal liberty except according to procedure established by Law.” The dynamic and progressive interpretation by the Supreme Court under different landmark judgments becomes the basis for dignity jurisprudence, human rights and social justice.
Article 21 has a much wider application. This fundamental right also expands to right to the dead person i.e. protecting the body of the dead and treating it with dignity, which it was accustomed to before the death.
Article 25[i] of the Constitution of India ruled that the immediate family members of Covid-19 victims be permitted to perform the funeral rites of the deceased subject to them following certain precautionary guidelines. The dear and near ones of a deceased person infected with Covid-19 should have an opportunity to have a look at the remains of that person and to pay their last respect to the departed soul.
Indian Penal Code, 1860 also provides certain provisions relating to right of dead person
Section 404 provides for dishonest misappropriation of property possessed by deceased person at the time of his death, Explanation 1 to Section 499 provides that what may amount to defamation to impute anything to deceased person and Explanation to Section 503 provides that a threat to injure the reputation of any deceased person in whom the person threatened is interested is within this section.
In Suo Moto InRe.[ii], The Hon’ble Supreme Court had an occasion to consider various facets of the Right of Life enshrined under Article 21 of the Constitution of India. The Right to dignity and fair treatment under Article 21 of the Constitution of India is not only available to a living man but also to his body after death. It is the legal position, the deceased victim after death was entitled to honorable, decent, and dignified last rites/cremation to be performed by her family members in keeping with the customs and traditions followed by the family which as per the electronic media report was a follower of Hindu traditions which as alleged was not allowed. If this is found to be true then it would be a case of gross violation of basic human and fundamental rights enshrined under Article 21 and Article 25 of the Constitution of India in the most blatant and uncalled for manner something which is absolutely unacceptable in our country governed by Rule of Law and the Constitution.
In Ashray Adhikar Abhiyan vs. Union of India[iii], the Supreme Court had upheld the right of a homeless deceased to have a decent burial as per their religious belief and the corresponding obligation of the State towards such people.
In Parmanand Katara vs. Union of India[iv], it was held that the State must respect a dead person to be treated with dignity and unless it is required for the purposes of establishing 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 in accordance with the law, the preservation of the dead body and its disposal in accordance with human dignity.
The State acts as Parens Patriae for its citizenry, so it is the responsibility of the State to provide a dignified cremation to a dead person in sync with the traditions. Right to life includes the Right to dignified life even after death. A person is enshrined to get dignity throughout his life and even afterlife, he must get due respect. Death shall be beautiful as quoted by Oscar Wilde said that “Death must be so beautiful. To lie in the soft brown earth, with the grasses wearing above one’s head, and listen to silence. To have no yesterday and no tomorrow. To forget time, to forget life, to be at peace.”
[i] Article 25, Constitution of India
[ii] P.I.L. Civil No. 16150 of 2020
[iii] AIR 2002 SC 554
[iv] 1989 4 SCC 286