“Death must be so beautiful. To lie in the soft brown earth, with the grasses waving 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.”
– Oscar Wilde
Bombay High Court: A Division Bench of Dipankar Datta, CJ and S.S. Shinde, J. addressed petitions filed against the burial of dead bodies of COVID-19 infected patients in kabrasthans. The Municipal Commissioner of Greater Mumbai had notified a list of kabrasthans for burial of such dead bodies. While dismissing the petitions and allowing the burial of dead bodies, the Court directed that:
Court putting up the concern with regard to burials stated that, “havoc of Corona Virus was enough to cause disarray in Mumbai, to top it, burials of unfortunate who died of COVID19 infection became a subject of controversy.”
To the above controversy, Court stated that it is now tasked to put the same at rest.
By a petition dated 13th April, 2020 petitioner had placed their concern that burial of the cadaver of a COVID-19 infected individual in a kabrasthan in the vicinity of their residences would endanger their lives as well as other living nearby and in view of that they requested for the same to be restrained.
Court on perusal of the WHO recommendations observed that,
“…even according to the WHO, there is no evidence of persons having developed infection of COVID-19 from exposure to the cadaver of a suspected/confirmed COVID-19 individual. That apart, the recommendations of the WHO are further clear on the point that people who have died because of COVID-19 infection can either be buried or cremated.”
Further the bench stated that,
“…It all boils down to the nature of precautions taken while one handles the dead body and also at the time of its burial.”
“…We are not too sure as to whether the incumbent Municipal Commissioner while directing that burial should not be allowed for containing the spread of COVID-19 and that the dead bodies of COVID-19 patients should be cremated at the nearest crematorium, irrespective of religion, was aware of the recommendations of the WHO and the GoI guidelines.”
Also the bench added that, Municipal Commissioner could be justified in evolving and implementing any containment measure not forming part of the specified measures, provided such a measure had the sanction of the existing protocols for management of COVID-19 or was such a pivotal measure, otherwise widely acknowledged, which was not included in the GoI guidelines.
Court thus held the action of Municipal Commissioner in preventing burials to be illegal and unauthorized and hence, the amended circular cannot be operated to the detriment of the members of the community for whom burial of the dead is part of the religion they profess, practice or propagate.
Unless any decision shocks the conscience of the judicial review Court, it ought to stay at a distance.
Concluding its decision, Court referred to the decision of Parmanand Katara (Pt) v. Union of India, (1995) 3 SCC 248, wherein it was held that right to dignity and fair treatment under Article 21 of the Constitution is not only available to a living man but also to his body after his death.
Right to a decent burial, commensurate with the dignity of the individual, is recognized as a facet of the right to life guaranteed by Article 21 of the Constitution.
Thus Court found no reason as to why the dead be deprived of his/her last rites. [Pradeep Gandhy v. State of Maharashtra, 2020 SCC OnLine Bom 662 , decided on 22-05-2020]
