Kerala High Court: While deciding as to whether Panchayat can pass a Resolution restricting the use of burning ghat only to persons within its jurisdiction to check the environmental pollution caused due to large scale burning of dead bodies, a division bench of Ashok Bhushan CJ and A.M. Shaffique J quashed the resolution passed by the Panchayat and directed it to setup electric crematorium at the burning ghat to check the environmental pollution.
P.B. Krishnan, learned Counsel for the petitioner contended that “Ivor Madom” is one among the five holy sites for cremation in the Country and hence prohibiting cremation of bodies from outside the Panchayat area is infringement of faith which is protected under Article 25 of the Constitution. P. Jayashankar, learned Counsel for the respondent contended that Panchayat has taken the decision to protect environment from pollution caused by cremation of 70-80 dead bodies daily on the banks of river Bharathapuzha.
The Court observed that the resolution passed by the Panchayat was not in accordance with Rule 10 of the Kerala Panchayat Raj (Burial and Burning Grounds) Rules, 1998 as the District Medical Officer did not recommended for closure or partial closure of burning ghats (instead he recommended for the setting up of electric crematoriums to abate the environmental pollution caused due to burning of dead bodies), nor there was any decision of the District Collector to that effect. The Court concluded that as the resolution was not passed in accordance with law, there is no infirmity in the decision of the State Government under Section 191(4) of the Kerala Panchayat Raj Act, 1994 to stay the operation of the resolution. Accordingly, the Court quashed the resolution passed by the Panchayat and held that the faith and belief of performing last rites of a dead at the bank of river is a part of religion, and hence the decision of Panchayat to prohibit the use of burning ghats to members of the Community situated outside the Panchayat area is violative of Article 25 of the Constitution. The Court further directed the Panchayat and State Government to setup electric crematorium at the burning ghat to check the environmental pollution. Krishna Das v. State of Kerala, 2015 SCC OnLine Ker 13637, decided on 02.07.2015