Death and Rights-A Juxtaposed Situation: Prakarti Shrivastava & Yashika Goplani

DEATH AND RIGHTS: A JUXTAPOSED SITUATION?

Author: Prakarti Shrivastava

Co-Author: Yashika Goplani

Dharmashastra National Law University, Jabalpur

ISSN: 2581-8465

ABSTRACT

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 his body after death. The right to decent burial or cremation is one of the basic rights which should be available to every citizen. This paper emphasizes why this right should be considered under Article 21 and what does decency mean. It is the moral duty of every citizen to treat the body of the deceased is a dignified way but looking into the contemporary situations the same thing is being neglected a lot. The importance of Burial can be traced from the play Antigone and even the different theories of law. Different International Instruments are promising this right during wartime but this paper elucidates that they should be available in every situation. Different methods used by different religions for disposing of the body are highlighted and through it, the meaning of decency has been explained.

INTRODUCTION

“The hour of departure has arrived, and we go our separate ways, I to die, and you to live. Which of these two is better only God knows?”

-Socrates

A belief in the immortality of the spirit has been present in most religions for centuries. The belief that there is a life after death is one of the oldest concepts of human history. Proving the immortality of the human soul has been the objective of many philosophers, theologians, and scientists.[1] Daniel Webster viewed ”One may live as a conqueror, a king or a magistrate, but he must die like a man. The bed of death brings every human being to his pure individuality, to the intense contemplation of that deepest and most solemn of all relations. The relation between the creature and his creator”

There is a strong societal interest in the proper disposition of the bodies of the deceased person. It is universally accepted that a duty is owed to both society and the deceased that the body is buried without any unnecessary delay. This duty rests upon whoever has the right to bury the descendant. At law, the duty was imposed upon the person under whose roof of the deceased died.[2] The body of the deceased person is the last remnants of his physical existence and therefore the family members and relatives wish to properly perform the last rites of the person so as his soul may rest in peace.

This paper is written to emphasize the point that the Right to decent burial should be considered as a part of the Right to Life enshrined in Article 21. It talks about how a person should be buried with dignity following the rituals according to their religion since India being a secular country does not prohibit anyone from following his religion. The article his based on the doctrinal method of research and the 20th edition of Bluebook has been followed for uniform citation.

The paper has been divided into different parts; the first part includes how a dead body should be respected. Everyone should try to maintain its dignity and how morally it is our responsibility to maintain its sanctity. The next part deals with how the imperative theory of law connected with the Rights of the deceased giving a link to Antigone play and the contemporary chaos caused in different parts of India for the disposal of dead bodies. In the third part, the overall International instruments that are there during wartime or peace have been referred. At last, the concept of decency has been explained concerning the religious importance and Article -15 enunciating Equality even after death.

DIGNITY AND MORALITY: MAINTAINING THE SANCTITY OF A DEAD BODY

“Defining death is difficult since it often involves ideas of a soul or other spiritual entities that are believed to continue existing and living in various metaphysical realms, however, there is a universal aspect which characterizes death: the corpse. The absence of life is physical, material, and real; it is a dead body. It is this primary materiality of death which triggers human responses to the inevitable, and all funerals in one way or another to solve the problem of the decaying corpse.”[3] When death is considered as a part of life and the dead body is that one thing which characterizes the death, it becomes important to give as much respect to a dead body as we give to a living body.

There has been a lot of talk on the rights of a living person, not to mention, there has been chaos over the right to die but the subject matter which deals with giving certain rights to a dead body except the rights related to the property has remained under the radar in the Indian context. Every human being has the inherent right to life[4] and obviously, the right to life enshrined in article 21 cannot be restricted to mere animal existence, it means something much more than just physical survival[5]. The right to safety and dignity that is given to a person under Article 21 of the Constitution of India is mainly for the safety and dignity of the body of that person and to prevent any crime or harm that may be caused against it.[6] Following the same reason, the body of the dead too must be respected and assured safety and dignity because irrespective of a person being alive or dead, a third person does not have the right to cause harm to the body of another.[7]

The iconic story of Antigone, though presented a debatable stage for two schools of law, highlighting the importance of decently disposing of the body of the dead by acknowledging it as “god’s unwritten and unfailing laws”[8]. Therefore to highlight the importance of making the right of decently burying a dead body a part of the right to life, the authors have emphasized the following points in this chapter:

  • Human dignity is a foundation of law.[9] It is the basic foundation of every law and it draws its roots from the naturalistic principles of law. But this principle of dignity is not only restricted to a living person but it also applies to a dead person, because although dead are not human beings but the assertion that the dead, as persons, can be submitted to outrages, i.e. that they are capable of suffering humiliation, is untenable[10].
  • The principles of law originated in morality and this being the cornerstone of the law[11] made the moral principles an inherent part of the real law. One of the two moral principles being basic to the legal decision concerning the rights and duties towards the dead is to give them a decent burial[12]. Giving respect to a dead body is a moral duty that needs to be recognized by the law.
  • The Right to Life is the most fundamental provided to the citizens of the country and contains the word that is most difficult to define and has an even wider application. The courts have creatively expanded the scope of the word “life” where it even included the right to die with dignity. Where death plays a very important part in the life of the people, the authors’ beliefs that this right should be expanded to inculcate the rights of the dead persons i.e. protecting the body of the dead and treating it with dignity[13] and disposing of them decently.

1.1 THE DIGNITY OF THE DEAD

The belief goes on to the extent that the dead bodies are considered to be impure because a demon enters and corrupts them with upon death.[14] And because of this belief, the dead bodies are treated in a way where they are left on the “towers of silence” to be eaten by carrion birds and were left to decompose. But, does treating the body in this undignified manner justifies their views regarding the death and dead bodies? This practice poses the question that is it justified to treat a dead body in this manner? Isn’t this kind of practice makes it important to extend the right to dignity to the deceased persons also?

Different philosophers have interpreted the word “dignity” in different ways during the period. But the one thing that seems to be common in most of the interpretations is that being alive is one of the conditions to merit an ascription of dignity. In the words of the philosopher of Age of Enlightenment, Immanuel Kant, human beings have “an intrinsic worth, i.e., dignity,” which makes them valuable’ “above all price.”[15]. Another philosopher named Alan Gewrith, while sharing Kant’s view that “rights arise from dignity”, also focused on the moral requirement not only to avoid harming but to actively assist one another in achieving and maintaining a state of well being.[16] These statements show that the word “dignity” implies more than just respect, freedom, and equality for human beings.

Human dignity is central to all major religious traditions and ethical systems when they speak about the sacred nature of human life.[17] And hereby the question arises that whether a dead body should be ascribed as a valid recipient of the elements of “dignity”? After understanding the subjectivity in the definitions for the word “dignity”, Dan Egonsson’s suggestion saying that “an entity must be both human and alive to merit an ascription of dignity”[18] points out the convention that the right to dignity provided to a human dies with him. Arguing on the point, the authors believe that a dead human being also holds human dignity. This point can be proved by the laws that are enacted to protect the dead man’s property[19], reputation[20], and even the place where they are buried or cremated[21]. But when a family member is denied from decently burying the dead body, it amounts to indignity for which we, unfortunately, have no law.

While trying to find a way to give dead bodies the right to be treated with dignity, some researchers suggested the term “posthumous dignity” for the dignity to be conferred upon the dead. Human dignity is an appeal to respect the actual humanity of the living and the very foundation of their human rights. Posthumous dignity is an appeal to respect the past humanity of the dead and the very foundation of the duties of the living towards the dead.[22]

We agree with the petitioner that right to dignity and fair treatment under Article 21 of the Constitution of India is not only available to a living man but also his body after his death[23], these words of the apex courts clearly shows that the right to be treated with dignity does not die with the death of a person because dead bodies are not at the mere disposal of others but deserve a particular treatment that respects their human dignity.

1.2 THE MORAL DUTY OF BURYING THE DEAD

The iconic story of a beautiful, radiant, and fascinating girl who is “at the limit where life is about to cross into death and death enters into the sphere of life”[24] has taught us the lessons of moral obligation towards the maintenance of the sanctity of death. The power of Sophocles’ story in Antigone maintains its hold to this day because of the universal acceptance of the heroine’s right to insist on respect for the body of her brother.[25] The story proclaims the need for the existence of morality and humanity in the laws. The ideas of the essence of humanity as perceived by humans are manifested in death, and consequently, death highlights cultural values, morals, and ethics apart from religious beliefs.[26] The most important features of the law are not to be found in its source-based character i.e. that they have been decreed by the King or Queen or the Sovereign, but in the law’s capacity to advance the common good of the society, to secure human rights of the individuals, and/or to govern with integrity the most important features of the law are not to be founding its source-based character i.e. that they have been decreed by the King or Queen or the Sovereign, but in the law’s capacity to advance the common good of the society, to secure human rights of the individuals, and/or to govern with integrity

Critics of the idea of separation of morality from law emphasize on the argument that ‘the most important feature of the law is not to be found in its source-based character i.e. that they have been decreed by the king or queen or the sovereign, but in the capacity of the law to advance the common good of the society, to secure human rights of the individuals and/or to govern them with integrity’.[27] Human rights are the product of the rights derived from the natural school of law and one of the parts of modern natural law i.e. the substantive natural law is based on universal morality[28] and by being born as man, it accords man such natural rights. The basic human right which serves the universal morality is the right to life accorded to every human being even to an unborn child. 

The right to life is an extensive concept and the judiciary has creatively expanded its scope in every way possible to protect the “life” in every form. But in a first, the Supreme Court in the case of Kharak Singh[29], 1963 considered the expanse of Article 21 by hinting at the treatment of corpses in the following words – “it is every kind of deprivation that is hit by Article 21, whether such deprivation is permanent or temporary.”[30]

The importance of a decent burial has been emphasized by the courts from time to time which shows that is not only about giving the right dignity to a dead body but it is a moral duty of the people living in the society to bury their loved ones according to his/her culture and tradition.

JURISPRUDENCE OF THE RIGHTS TO DECENT DISPOSAL OF DEAD BODIES

The advocates of Imperative theory define the law as consisting of the commands issued by the state to its subjects—the rules laid down by the state for observance by its subjects, and enforced, if necessary, by the physical power of the state.[31] This theory mainly focuses on the laws that have been codified and emphasize that they are required to be followed by hook or crook. Different jurists have given definitions of the same.

This part is pointing out why the Right to decent burial is an essential right taking in view the laws already codified for the same. The perception is not always the same at every stage. There comes a phase in life when the spring of life is frozen, the rain of circulation becomes dry, the movement of body becomes motionless, the rainbow of life becomes colorless and the word life which one calls a dance in space and time becomes still and blurred and the inevitable death comes near to hold it as an octopus gripping firmly with its tentacles so that the person ―shall rise never.[32]

Our legal system is based on England’s Common Law. Since the Norman days, it is the church and, by evolution, the Ecclesiastical Courts which appropriated the rights over the “dead body”. This was primarily on account of three reasons, (a) to prevent sacrilege, (b) as burial grounds were church-controlled, and (c) the church exercised probate jurisdiction (deciding over the estate of the deceased).[33] The dead body has always been considered valuable as it is important for the remembrance of our species.

2.1 REGULATING THE ‘DECENT’ BURIAL: ROLE OF JUDICIARY

In S. Sethu Raja v. The Chief[34], the petitioner had brought to the court’s attention, the Supreme Court’s stand on the right to accord decent burial or cremation to a dead body.[35] Even in Pt. Parmanand Katara v. Union of India[36] it was held that the Right to dignity and fair trial is not only available to a living person but also his body after his death.

The consequent judicial decisions have shown that the Right to decent burial should be available to all citizens whether in peace or wartime situations. As was mentioned in Ashray Adhikar Abhiyan v. Union of India[37]by the honorable Supreme Court that it is the right of a homeless deceased to have a decent burial as per their religious belief and this is the duty of the State to ensure the same. It has been reported in Francis Coralie v. Union Territory of Delhi[38] “that any act which damages or injures or interferes with the use of any limb or faculty of a person, either permanently or temporarily, would be within the inhibition of Article 21”.

As the Right to live with dignity has been considered as an essential right in India, similarly Right to Die with dignity has also been observed as a fundamental right in 2018[39] where it was said by Chief Justice Dipak Misra that, “Life and death are inseparable. Every moment our bodies change… life is not disconnected from death. Dying is a part of the process of living.” This establishes the fact that even after death the person is having some relevance and therefore his last rites should be performed properly. 

2.2 THE LESSONS FROM THE PLAY ANTIGONE

“Law and order exist to establish justice and when they fail in this purpose they become the dangerously structured dams that block the flow of social progress”

-Martin Luther King

Natural Law is the theory of law which means that the laws are derived from nature and act as a binding force upon human society.[40]Antigone despite breaking the law of land felt that her act was justified as she believed that there is something over and above the law of land which is moral. In this story after the death of Oedipus, his successor King Creon believed in the theory of manmade laws. Antigone had a firm belief that Gods have authorized people to give a respectful burial. And thus, following God’s wish/command has a more priority than following the man-made rules. he values portrayed in works of literature such as Sophocles’ Antigone reflect on the true nature of man and implore us to adopt certain ethical principles, which will make us socially responsible, lawyers.[41]

The play Antigone highlights the Importance of burial. Like John Austin, the founder of the Positivist Theory of law, states that “Law is the aggregate of rules set by men as politically superior, or sovereign, to men as politically subject.”In this also the king Creon(Superior) ordered that the body of Polynices (a traitor) should not be buried because of his deeds and since this was the command of the sovereign it was required to be followed but at the end, his sister Antigone buries his body reflecting its importance in Greeks. The point to be taken into account is that whether the person is a traitor, thief, missing, or anyone else, his last rites should be done with full dignity.

According to St. Thomas Aquinas it is also to be noted that the primary function of law is to secure peace and to make sure that proper justice is given to the victim.[42] But when a person is not permitted burial it is a violation of justice. Every member of the society agrees for a decent burial even of their enemies so in this play it was Antigone’s brother so she did the right thing and at last every member of a community-supported her.

2.3 THE CONTEMPORARY CHAOS OVER DISPOSING OF THE DECEASED

Taking into consideration the COVID-19 situation, it was observed that Madras High Court registered Suo Moto to PIL after seeing obstruction in the burial process by some people. As was quoted in Kharak Singh v. State of Uttar Pradesh[43]by the Supreme Court that the word “life” in Article 21 does not mean merely animal existence rather it is used as something more. Similarly in this case it asserted that the scope and ambit of Article 21 cover the Right to decent Burial. In this case, a doctor died due to coronavirus after treating a patient and his burial was obstructed by a mob because of the fear that this will spread the virus.

The court noted that “It prima facie appears that as a consequence of the above-alleged acts, a person who practiced a noble profession as a doctor and breathed his last, has been deprived of his right, to have a decent burial, in a cemetery earmarked for that purpose and that apart, on account of law and order and public order problem created, the officials who have performed their duties, appeared to have sustained grievous injuries.”.[44]

It even took into account Section 297 of Indian Penal Court speaking about Trespass on burial places,

“Trespassing on burial places, etc.—Whoever, with the inten­tion of wounding the feelings of any person, or of insulting the religion of any person, or with the knowledge that the feelings of any person are likely to be wounded, or that the religion of any person is likely to be insulted thereby, commits any trespass in any place of worship or on any place of the sepulcher, or any place set apart from the performance of funeral rites or as a depository for the remains of the dead, or offers any indignity to any human corpse, or causes disturbance to any persons assembled for the performance of funeral ceremonies, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.”[45]

The most important thing stated by the court was, “Citizens are not expected to take law and order into their own hands and if it is so, (it) would lead to anarchy. There is a likelihood of similar kind of incidents to occur in the future also.”[46] This statement supports the point raised by the authors that the Right to decent burial should be considered under the Right to life to reduce or nullify the cases happening.

There even happened an incident in Mumbai where a 65-year-old Muslim man from a suburban area who died of coronavirus infection was cremated after the trustees of a cemetery denied permission to bury his body there.[47]  This denied the family of the victim to perform his last rites which are religiously followed. Although there are guidelines issued by the Ministry of Health and Family welfare on Dead body management[48] and even by the World Health Organization on Infection Prevention and Control for the safe management of a dead body in the context of COVID-19[49] these are still undermined and are not followed.

It was even argued that the Burial of the dead body should not be held but the Bombay High Court stated that the revised circular of Brihanmumbai Municipal Corporation[50]does not prevent the burial of any minority community victim affected by the virus.

In the book ”Burial of the Dead” written by William Henry Francis Bsevi, it is specified that ”Across history, cultures with almost no other rituals in common treat their dead with reverence”, i.e. irrespective of the cultural and differences and the various rituals and practices followed by people across the globe, one of the common rituals is the treating of the deceased with respect. The notion of respect is so rooted that people even agree to deal gently with the bodies of their enemies.[51]

INTERNATIONAL INSTRUMENTS: PROMISING THE DIGNITY TO THE DEAD

Every individual not only in India but worldwide should have the right to a decent burial. Various instruments are governing this right during wartime but it should be taken into account that this right is a must even in peacetime. Even persons who are missing deserve that their last rites should be performed respectfully and decently.

We have a body of internationally recognized legal principles and rules for protecting the rights of the dead and treating them with dignity. These principles and rules derived from what the Hague Conventions call ‘the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience’[52] and what the International Court of Justice referred to as ‘elementary considerations of humanity, even more exacting in peace than in war’.[53]

The first step towards protecting the wounded and prisoners of war was taken through publishing the Geneva Conventions in the year 1949 which somewhere provides a legitimate reason for giving the right to decent burial to the dead even in the time of peace. Though the obligation to dispose of the dead respectfully was first codified in the 1929 Geneva Convention they were dealt with in detail in the Geneva Convention of 1949.[54] Article 17 of the Geneva Convention I quotes that “the dead are honorably interred, if possible according to the rites of the religion to which they belonged, that their graves are respected, grouped if possible according to the nationality of the deceased, properly maintained and marked so that they may always be found”[55], showing the importance of maintaining the ‘decency’ while burying the dead. The Geneva Conventions of 1949 have attained virtually universal recognition and a great number of their rules have become recognized as customary rules and as constituting jus cogens.[56].

 In armed conflicts, death is not an exceptional occurrence, but becomes the rule and occurs daily. Dead bodies are sometimes despoiled, mutilated, abandoned without any funeral rite, and a decent burial. Unidentified remains may be counted by hundreds or thousands. As a result, families look for years for missing relatives, ignorant of the fate of their loved ones. International Humanitarian Law, also called the laws of war or the law of armed conflict, is an international law branch, which has been developed to regulate and, as far as possible, to humanize armed conflicts. It contains several clear and concrete obligations incumbent to belligerent parties on the management of dead bodies, which provide the legal framework for humanitarian forensic action.[57]

In a resolution adopted in 2005 on human rights and forensic science, the UN Commission on Human Rights underlined “the importance of dignified handling of human remains, including their proper management and disposal, as well as of respect for the needs of families”[58]

These internationally recognized rules and laws imply that the need for respecting the dead who died during the war also exists in times of peace and the authors also believe that there is a need to form a body of rules that could fulfill this need.

THE CONCEPT OF “DECENCY

EQUALITY IN CONSONANCE WITH DEATH

The right to decent burial should be considered as a fundamental right but there comes a question that what decency actual means? Since India is a secular country every religion has its rituals of performing the last rites but here we are talking about a rule in which every citizen regardless of his caste, creed sex, or religion should be given a decent goodbye. Decency even points towards the various ways of dealing with a deceased body. R v Hunter, MacKinder, and Atkinson (1974)[59]appears to be the first example since the late nineteenth century of prosecutions relating to preventing a burial.[60]

Article 15 of the Indian Constitution states that,

Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction, or condition about

(a) access to shops, public restaurants, hotels, and palaces of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public

(3) Nothing in this article shall prevent the State from making any special provision for women and children

(4) Nothing in this article or clause ( 2 ) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or the Scheduled Castes and the Scheduled Tribes[61]

Referring to this section it can be seen that no kind of discrimination should be accepted in society be it during the person is alive or dead. Burial of a deceased should not be denied based on his caste or class. There was a question raised before Madras High Court that why should Dalit Hindus have a separate ground for burial.[62] Even taking the present situation where a virus has destroyed many lives this right is being denied to many people. A Chennai neurologist was denied a dignified burial as a mob vandalizes the ambulance[63] due to the agitation caused due to the disease. According to the Burial and Cremation Act, Section 4(1) (a),

(1)No burial order shall be required for any burial where— (a) the immediate burial of the body of a person who has died from an infectious disease is ordered by any authority under any enactment relating to public health[64].

It will be socially acceptable that in a situation of a pandemic it would be irrelevant to deny a person his burial. If such a person is not given the place or permission of burial to whom this harm is caused?[65] To the one who is no more there or the family, this again forces us to realize how the last remains of the person are important.

The notion of a decent burial is linked to the question of what we think are the appropriate ways to deal with a deceased body. It may be thought that a body should be disposed of as soon as possible and certainly before any decomposition taking place. It is reasonable to suppose that people would be disgusted and outraged by the idea of someone keeping a corpse whilst it decomposes.[66] The same situation was seen in Mumbai where dead bodies were kept unattended in the hospital while other patients were being treated.[67]

This is a complete violation of the rights of the one being treated there as well as of the one who died. A body should be disposed of as early as possible and not doing so also leads to indecency. Place, time, manner, all these things matter in a decent burial process.

RELIGION – A PATH DEFINING ‘DECENCY’

The Bible character Abraham is the first person mentioned in the Bible specifically in connection with a burial. Abraham paid a generous sum of silver to purchase a cave-like tomb that eventually housed the dead bodies of his wife, himself, and some of his sons and daughters-in-law. Doing this, Abraham, the greatly respected forefather of Judaism, appears to have set a precedent using his example, so that Jews after him viewed burial — either in the earth or in a tomb — as the proper and important way to put their deceased relatives and friends to rest.[68]

The importance of properly disposing of a dead body has emerged from the sacred books containing a collection of sacred texts and scriptures, showing a relationship between humans and god having different names. There have been times where the judiciary of India has faced questions related to the decent burial of a dead, sometimes the subject in the question was the death of a homeless person and sometimes the subject was the deceased doctor being denied burial because he was infected with a virus. But for effectively applying the right that we are demanding, that is the right to ‘decent’ burial, there is a need to give a reasonable interpretation to the element that will constitute a ‘decent’ burial. And to start with that, religion plays an important role in defining the word ‘decent’ in this context.

Quoting the Preamble of the Indian Constitution, it says that “The people of India, having solemnly resolved to constitute India into a Sovereign, Socialist, Secular, Democratic Republic”[69] and to justify the word “secular”, the constitution consists of Article 25-28, that ‘implies that the State will not discriminate, patronize or meddle in the profession of any religion’[70]. The constitution has given the right to practice religion, making religious practices an integral part of religion[71] but when someone is restricted to dispose of the body of their loved ones by following those practices, it not only questions the right of the dignity of the dead but it also threatens the right of an individual to follow the religious practices.

Important to all of the major religions are beliefs and customs related to human suffering, the death experience, and an afterlife. Besides the social aspects that religious affiliations provide, many people follow faith traditions to make sense of life, death, and life after death.[72] Hindus beliefs that when a person dies their soul merely moves from one body to the next on its path to reach Nirvana (Heaven), Muslims embraces the belief that death is nothing but God’s will, and the Christians philosophy says that the dead will go to heaven to be with God once they have died and so in some respects, a funeral is a time of joy, although also sadness, as the person will be missed by friends and loved ones[73]. All these beliefs show the sanctity of death and the importance of the rites that need to be followed during the time of disposing of the body of the dead.

While defining the religion of Hinduism, the Supreme Court said that “when we think of the Hindu religion, we find it difficult, if not impossible, to define Hindu religion or even adequately describe it. Unlike other religions in the world, the Hindu religion does not claim anyone prophet; it does not worship anyone God; it does not subscribe to any one dogma; it does not believe in any one philosophic concept; it does not follow anyone set of religious rites or performances; in fact, it does not appear to satisfy the narrow traditional features of any religion or creed.”[74]Apart from these differences, religion stands apart in the practice of disposing of the dead body. Where other religious practices emphasize on the burial of the dead, the religion of Hinduism beliefs in cremating the body of the dead.

“Burn him not up, nor quite consume him, Agni: let not his body or his skin be scattered,

 O all possessing Fire, when thou hast matured him, then send him on his way unto the Fathers.

 When thou hast made him ready, all possessing Fire, then do thou give him over to the Fathers,

 When he attains unto the life that waits for him, he shall become subject to the will of gods.

The Sun receive thine eye, the Wind thy Prana (life-principle, breathe); go, as thy merit is, to earth or heaven. Go, if it is thy lot, unto the waters; go, make thine home in plants with all thy members.”

– Rigveda 10.16

According to the Hindu beliefs, the human body is made up of five elements, one of them is Agni. The importance of cremating the body in the Hindu religion is explained through the fact that the belief that Agni is an intermediary between gods and men.[75] These beliefs and practices need protection, their belief in the immortality of the soul and sanctity of fire becomes the elements that can show the decency in the process of cremating the dead body. The practice of electrically cremating the body also goes against the faith and beliefs of the people. The practice of open cremation is the belief of Hindus that the soul of a dead person must be completely detached from the body and the material world so that it can be reincarnated again and for this, an open cremation is needed so that the soul can be easily released as soon as the body is burned atop a massive pile of wood[76]. The authors’ beliefs that every deceased deserves the right to be disposed of according to his/her belief, faith, and tradition and this is what decency includes.

Burial means lawful and decent burial[77]. And the authors’ beliefs that one of the criteria of decency is giving them the freedom to follow the religious practices related to burial or cremation. The world ‘decent’ also includes the requirement of treating the dead body in a dignified manner as stated by the apex court of India that ‘the right to life guaranteed under Article 21 of the Constitution includes the right to live with human dignity and the same should also be extended to a person who is dead and the right to accord a decent burial or cremation to the dead body of a person, should be taken to be part of the right to such human dignity’.[78]

Religious practices or performances of acts in pursuance of religious belief are as much a part of religion as faith or belief in particular doctrines[79]. Incidents, where a doctor, a victim of coronavirus whose last wish was to be buried following customs and religious practices[80] is denied a ‘decent’ burial because of the reason that the “citizens have taken law and order in their hands”[81], violates the right to religious practice[82] of an individual. This shows the need of making laws where the dead can be buried in a “decent” manner. 

CONCLUSION

Death is sometimes tragic, sometimes a blessing—always inevitable. Death transforms a living human being, a person with rights and autonomy, into … something else.[83] Death marks its presence and characterizes itself in the form of a – Corpse, which needs to be protected to maintain the sanctity of the “god’s willing concept” of death.

Dignity is a subjective concept. It has different dimensions but it is also a right that never dies. Death is an intrinsic part of life and a third party never acquires the right to take away the dignity of a person, no matter he is living his life or is dead. The law is never devoid of morality and humanity rather it thrives to protect the person from every immorality and inhumanity. And to protect and maintain the dignity of the deceased by giving them a right to ‘decent’ burial requires the law-making power of the sovereign. Laws are protecting the mutilation of the dead body or giving them a proper ‘burial’ in times of war, but there is also a need to give them the respected farewell even in the time of peace.

A slight difficulty arises when we try to define ‘decency’ in this context. When some are denied from burying the dead body because of their caste or religion, it not only hinders their right against discrimination but also restricts them from enjoying their right to freedom of practicing religion. Then it shows the ‘indecency’ and ‘indignity’ to the dead body.

“Death? Why this fuss about death? Use your imagination, try to visualize a world without death! . . . Death is the essential condition of life, not an evil.”

 –Charlotte Perkins Gilman

These words mark the importance of death, where death is a part of the life cycle and denying the dead their right to decent burial or cremation, brings impurities in this very process of life.

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[2]A. Nasim, P. Beena, Rights of the dead, International Journal of Management Research & Review, Volume 5,Issue 5.

[3] Fredrik Fahlander&TerjeOestigaard, The Materiality of Death: Bodies, Burials, Beliefs, (May 17,2020, 10:00 AM), http://mikroarkeologi.se/publications/ch1_FF_TO_Intro.pdf.

[4]UN Genaral Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, Vol. 999, p.171, article 6(1).

[5]Yamkhomang Haokip v. State of Manipur (2003) 3 GLR 409.

[6]Anagha Nair, Rights of the Deceased: Article 21, 4 ASIAN LAW & PUBLIC POLICY REVIEW, 139 (2019).

[7]A. Nasim, P. Beena, Rights of the dead, International Journal of Management Research & Review, Volume 5,Issue 5.

[8]C FRED ALFORD, PSYCHOLOGY AND THE NATURAL LAW OF REPARATION 8 (Cambridge University Press 2006).

[9]STEPHAN KIRSTE, HUMAN DIGNITY AS A FOUNDATION OF LAW (Franz Steiner Verlag 2018).

[10]Antoon De Baets,A Successful Utopia: The Doctrine of Human Dignity, 7 UNIVERSITY OF GRONINGEN,72 (2007).

[11]EmimaAlistar (Hîrlav), The Relation Between Law and Morality, RESEARCH ASSOCIATION FOR INTERDISCIPLINARY STUDIES.

[12]ARROW, KENNETH J., et al. MEDICINE AND MORAL PHILOSOPHY: A PHILOSOPHY AND PUBLIC AFFAIRS READER,.Edited by Marshall Cohen et al., Princeton University Press, 1981. JSTORwww.jstor.org/stable/j.ctt7zvchg, (Accessed May 19, 2020, 12:04 PM).

[13]Anagha Nair, Rights of the Deceased: Article 21, 4 ASIAN LAW & PUBLIC POLICY REVIEW, 139 (2019).

[14] Domagoj Valjak, The Towers of Silence: Ancient reminders of an eerie Zoroastrian burial ritual, (19th May,2020 1:23 PM), https://www.thevintagenews.com/2017/02/14/the-towers-of-silence-ancient-reminders-of-an-eerie-zoroastrian-burial-ritual/.

[15]James Rachels,Kantian Theory: The Idea of Human Dignity, From James Rachels, The Elements of Moral Philosophy, pp. 114-17,122-23, 1986,https://public.callutheran.edu/~chenxi/phil345_022.pdf.

[16]White, Mark D, HANDBOOK OF ECONOMICS AND ETHICS, (Edward Elgar Publishing, 2009).

[17]Antoon De Baets, A Successful Utopia: The Doctrine of Human Dignity, 7 UNIVERSITY OF GRONINGEN,72 (2007).

[18]DAN EGONSSON, DIMENSIONS OF DIGNITY: THE MORAL IMPORTANCE OF BEING HUMAN (Dordrecht, Sweden: Kluwer Academic, 1998).

[19] Indian Penal Code 1860 § 404.

[20] Indian Penal Code 1860 § 499.

[21] Indian penal code 1860 § 297.

[22]Supra.

[23]Pt.ParmanandKatara v. Union of India (1995 (3) SCC 248).

[24]Costas Douzinas, Law’s Birth and Antigone’s Death: On Ontological and Psychoanalytical Ethics, 16 Cardozo L. Rev. 1325 (1995).

[25]Marsh, Tanya D., The Laws of Human Remains, (Lawyers and Judges Publishing Company, 2015) (19th may 2020, 8:45 PM) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2646184.

[26] Fredrik Fahlander&TerjeOestigaard, The Materiality of Death: Bodies, Burials, Beliefs,(19th May, 2020, 9:02 PM). http://mikroarkeologi.se/publications/ch1_FF_TO_Intro.pdf.

[27]Etale Erick Mbugi, An Overview of Jurisprudence Introduction,( 19th May 2020, 9:23 PM) https://www.studocu.com/row/document/africa-nazarene-university/jurisprudence/mandatory-assignments/jurisprudence-assignment/6099811/view

[28]Supra.

[29]Kharak Singh v. State of UP, AIR 1963 SC 1295.

[30]SonamChandwani, Let’s Note Deny the Right To Decent Burial, Money Control, ( 19th May, 2020, 9:35 PM) https://www.moneycontrol.com/news/coronavirus/covid-19-lets-not-deny-the-right-to-a-decent-burial-5218391.html.

[31]John W. Salmond, Jurisprudence or The Theory of Law, (12th ed. Sweet & Maxwell, 2016). 

[32]Common Cause (A Regd. Society) v. Union Of India,2018 5 SCC 1.

[33]SanjoyGhose,Honouring the dead(Dec 20, 2014),https://www.dnaindia.com/analysis/column-honouring-the-dead-2045485.

[34]AIR 1955 SC 36.

[35]SanchitaKadam, Do the dead have rights in India(April 21,2020),https://sabrangindia.in/article/do-dead-have-rights-india.

[36]1989 SCC (4) 286.

[37]AIR 2002 SC 554.

[38]AIR 1981 SC 746.

[39]Aruna Ramchandra Shanbaug v. Union Of India &Ors, (2011) 4 SCC 454.

[40]Merriam Webster,“Natural Law Definition”, https://www.merriam-webster.com/dictionary/natural%20law. 

[41]AnubhavPandey,Analysis of the play Antigone by Sophocles from the perspective of Natural and Positive School of Law (July 28,2018),

[42]Franciscan Media,“St. Thomas: Philosopy”, https://www.franciscanmedia.org/saint-thomas-aquinas/.

[43]AIR 1963 SC 1295.

[44]SuoMotu WP No. 7492 of 2020, 2020 SCC OnLine Mad 938.

[45]Indian Penal Code 1860 § 297.

[46]Supra.

[47]Deccan Herald,Coronavirus: Muslim COVID-19 victim denied burial, cremated in Mumbai (April 2, 2020),

https://www.deccanherald.com/national/west/coronavirus-muslim-covid-19-victim-denied-burial-cremated-in-mumbai-820415.html.

[48] Covid -19 Guidelines on Dead Body Management, Ministry of Family and Health Welfare, Directorate General of Health services, https://www.mohfw.gov.in/pdf/1584423700568_COVID19GuidelinesonDeadbodymanagement.pdf.

[49] Infection Prevention and Control for the Safe Management of the Dead Body in the context of COVID-19: Interim Guidance, World Health Organization, 

https://www.who.int/publications-detail/infection-prevention-and-control-for-the-safe-management-of-a-dead-body-in-the-context-of-covid-19-interim-guidance.

[50]Mumbai Mirror, BMC circular doesn’t prevent burial of COVID-19 victim: Bombay High Court(April 8,2020),

https://mumbaimirror.indiatimes.com/coronavirus/news/bmc-circular-doesnt-prevent-burial-of-covid-19-victim-bombay-high-court/articleshow/75048219.cms.

[51]Anagha Nair, Rights of the Deceased: Article 21, 4 ASIAN LAW & PUBLIC POLICY REVIEW, 139 (2019). 

[52]The Hague Convention (IV), 1907, Preamble, Respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War, (21st May, 2020 10:26 AM),https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=BD48EA8AD56596A3C12563CD0051653F

[53]United Kingdom of Great Britain and Northern Ireland v. Albania, Merits, International Court of Justice (ICJ), Judgment of 9 April 1949, I.C.J. Reports 1949, p.22.

[54]International Humanitarian Law Database, International Committee of Red Cross, Rule 115. Disposal of the Dead,(21st May, 2020 10:43 AM) https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule115#Fn_4C706F6A_00002.

[55]Geneva Convention (I) 1949, Article 17, https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=6E2CC750300A2364C12563CD00519FEC.

[56] Prof. Dietrich Schindler, Significance of the Geneva Conventions for the Contemporary World, International Committee of Red Cross, https://www.icrc.org/en/doc/resources/documents/article/other/57jq6t.htm.

[57]Gaggioli G. International Humanitarian Law: The legal framework for humanitarian forensic action, Forensic Science International,Volume 282, Page 184-194.

[58]Kristi L. Koenig, Carl H. Schultz, Koenig and Schultz’s Disaster Medicine: Comprehensive Principles and Practices, 2nd Edition 2016.

[59][1974] 1 QB 95.

[60]Jones, I and Quigley, M, Preventing lawful and decent burial: resurrecting dead offences, White Rose Research Online Paper, http://eprints.whiterose.ac.uk/127745/8/Legal%20Studies%20Burial.pdf.

[61]Const. of India art.15.

[62]The Times of India,Dalits also Hindus, why separate burial ground for them: Madras High Court (August 27,2019),

https://timesofindia.indiatimes.com/city/chennai/dalits-also-hindus-why-separate-burial-ground-for-them-hc/articleshow/70849799.cms.

[63]Sinduja Jane &Omjasvin MD,COVID-19: Chennai neurologist denied dignified burial as mob vandalises ambulance, injures staff (April 20,2020).

https://www.newindianexpress.com/cities/chennai/2020/apr/20/covid-19-chennai-neurologist-denied-dignified-burial-as-mob-vandalises-ambulance-injures-staff-2132770.html.

[64]Burial and Cremation Act § 4 (1963).

[65]Jones, I and Quigley, M, Preventing lawful and decent burial: resurrecting dead offences, White Rose Research Online Paper, http://eprints.whiterose.ac.uk/127745/8/Legal%20Studies%20Burial.pdf.

[66]Id.

[67]Arun Kumar Chaubey,Bodies of COVID-19 victims kept near patients at Mumbai’s Sion Hospital(May 7,2020),

https://zeenews.india.com/india/bodies-of-covid-19-victims-kept-near-patients-at-mumbais-sion-hospital-watch-video-2281865.html .

[68]Aaron Charles, Importance of a proper burial in the bible, ( 22nd May, 2020 2:05 PM), https://classroom.synonym.com/importance-of-a-proper-burial-in-the-bible-12085510.html

[69]Constitution Of India, Preamble.

[70]Vinodh Reddy, Fundamental Rights (Articles 14-18, 19-22, 23-24, 25-28, 29-30, 32), ( 22nd May, 2020 2:15 PM) https://edugeneral.org/blog/polity/fundamental-rights-articles-14-18-19-22-23-24-25-28-29-30-32/.

[71]Tilkayat shri govindlalji maharaj v. State of Rajasthan, 1963 AIR 1638.

[72]S Bauer- Wu, R Barrett, K Yeager, Spiritual Perspectives and practices at the end-of – life: A Review of The Major world Religions and Application to Palliate Care, 13 INDIAN JOURNAL OF PALLIATE CARE, 53 (2007).

[73]An Outline of Different Cultural Beliefs at the time of death, (22nd May, 2020 2:45 PM), https://lmrpcc.org.au/admin/wp-content/uploads/2011/07/Customs-Beliefs-Death-Dying.pdf.

[74]BramchariSidheswarBhai and ors. V. State of Bengal, 1995 AIR 2089.

[75]Aditi G Samarth, THE SURVIVAL OF HINDU CREMATION MYTHS AND RITUALS IN 21ST CENTURY PRACTICE: THREE CONTEMPORARY CASE STUDIES, ( 26th May, 2020, 4:54 PM), https://utd-ir.tdl.org/bitstream/handle/10735.1/5908/ETD-5608-035-SAMARTH-7698.91.pdf?sequence=6.

[76]RumaniSaikiaPhukan, Electric cremation v. Traditional Funeral Pyre, (26th May, 2020, 5:08 PM) https://www.mapsofindia.com/my-india/society/electric-cremation-vs-the-traditional-funeral-pyre.

[77]R v Hunter, MacKinder, and Atkinson,[1974] 1 QB 95.

[78]S. Sethu Raja v. The Chief, AIR 1955 SC 36.

[79]RatilalPanchand Gandhi v. State of Bombay and ors, A.I.R. 1954 S.C. 388.

[80]Poornimamurali, ‘It Was His Wish’: Wife Pleads for Decent Burial for Chennai Doctor who Contracted Covid-19 While on Duty, (22nd May, 2020 3:04 PM),https://www.news18.com/news/india/it-was-his-wish-wife-pleads-for-decent-burial-for-chennai-doctor-who-contracted-covid-19-while-on-duty-2587341.html.

[81]SuoMotu WP No. 7492 of 2020, 2020 SCC OnLine Mad 938.       

[82]Tilkayatshrigovindlaljimaharaj v. State of Rajasthan, 1963 AIR 1638.

[83]Marsh, Tanya D., The Laws of Human Remains, (Lawyers and Judges Publishing Company, 2015), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2646184.

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