Covid-19 and the Right to a Decent Burial

Mohammed Shahjahan:

With the break out of the current global pandemic Covid-19, pathetic and deplorable incidents as regards the unfortunate victims of the pandemic continue unabated, giving rise to legal issues and questions of unusual nature that warrant examination. One of these happens to be the right of the deceased to a decent burial.

As elsewhere in the subcontinent in general and in India and Srilanka in particular, there have also been reports of people hailing from different parts of Bangladesh  opposing or resisting the burial of victims of Covid-19 for fear of the spread of Covid-19 infections in their respective localities. Such opposition or obstruction inevitably leads to increased hardship and untold mental agony on the part of the family members, volunteers and officials concerned with a befitting burial of those dying of Covid-19. More importantly, under the circumstances, the victims are deprived of the legal and religious right to a decent burial. In response to the said phenomena, the World Health Organization (WHO) clarified and confirmed that  dead bodies are not contagious after 3 hours of death, thus paving the way for Covid-19 victims to be buried the safe way. In line with the findings and recommendations of WHO, governments including that of Bangladesh have come up with guidelines to be followed for proper burial.

Apart from the sheer ignorance emanating from erroneous perceptions as to Covid-19, a number of other factors appear to have triggered the problems with the burial of Covid-19 victims. As for Srilanka, the government itself there came up with a guideline requiring the muslim victims of Covid-19 to be burnt to ashes as against the islamic rites of burial. Shocked and dismayed, public-spirited muslims in Srilanka are reported to have filed a Fundamental Rights (FR) Petition akin to Writ Petition before the Supreme Court of Srilanka against the same. And in India, it was a resident of Mumbai who took it upon himself to move the Bombay High Court seeking to restrain muslims from burying the dead who succumbed to Covid-19.

Pleasant it is that in a liberal and progreesive interpretation of the right to life as enshrined in Article 32 of the Constitution of Bangladesh and in Article 21 of the Constitution of India, the Apex Courts have by now recognized, vide various judgments, the right of the dead to a decent burial as an indispensable right innate in the very right to life itself.

In Human Rights and Peace for Bangladesh (HRPB) Vs. Bangladesh  (Writ Petition No. 7786 of 2012) being a case that sought to challenge the refusal to hand over the dead body of a newborn child to his parents due to inability to pay hospital bills, a Division Bench of the High Court Division of the Supreme Court of Bangladesh held, per Mr. Justice Syed Muhammad Dastagir Husain, J that, “A dead body of a human being deserves a respected burial and it must not be held as a mere product for recovering the outstanding dues of a dead patient.”

In Pt.Parmanand Katara Vs. Union of India reported in 1995 (3) SCC 248, the Supreme Court of India held, inter alia, that, “We agree with the petitioner that right to dignity and fair treatment under Artcle 21 of the Constitution of India is not only available to a living man but also to his body after his death.”

In Ashray Adhikar Abhiyan Vs. Union of India  reported in AIR 2002 SC 554, the issue for adjudication before the Supreme Court of India related to the right of a deceased homeless person to a decent burial. The Supreme Court of India disposed of the case affirming the right of such a deceased to a decent burial as per his or her religious belief.

In S.Sethu Raja vs The Chief Secretary, a case filed for directions upon the government to bring back the dead body of an Indian citizen from Malayasia, the Madras High Court held, inter alia, that, “By our tradition and culture, the same human dignity (if not more), with which a living human being is expected to be treated, should also be extended to a person who is dead. 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.”

In Pradeep Gandhy vs. State of Maharashtra, a direction restraining the burial of the dead bodies of the muslims who died of Covid-19 in muslim graveyards in Mumbai was prayed for. The petitioner also prayed for interim Orders.The Bombay High Court disposed of the petition holding, inter alia, that, “The Government of India through the Ministry of Health and Family Welfare has issued guidelines for dead body management during the current COVID-19  pandemic. These guidelines clearly state that there is unlikely to be an increased risk of COVID infection from a dead body to health workers or family members who follow standard precautions while handling the dead body. These guidelines further contemplate the burial of the deceased persons and how the same is to be handled is also set out in the said guidelines.This being the case, I do not think that there can be any ad-interim relief granted in the present petition directing any authority to restrain any person from burying their deceased.”

In what is a latest judicial development, the Madras High Court has intervened in matters related to the right of a deceased to burial in April this year by way of Suo Motu Writ Petition No. 7492 of 2020 . The factual matrix in the Suo Motu Writ Petition No. 7492 of 2020 are that a medical doctor with co-morbidity died of Covid-19; the dead body was taken to a cemetary; the local people showed up and opposed the burial; they vandalised the ambulance and assaulted the people accompanying the dead body; as a consequence, the dead body had to be carried elsewhere for burial. In this case, the Madras High Court held, inter alia, that, “ In the considered opinion of the Court, the scope and ambit of Article 21 includes right to have a decent burial. It Prima Facie appears that as a consequence of the abovesaid alleged acts, a person who practised a noble profession as a doctor and breathed his last has been deprived of his right to have a burial in a cemetary earmarked for that purpose and that apart, on account of the law and order problem created, the officials who have performed their duties, appeared sustained grievous injuries.”

The rites of and the right to burial thus conforming to the right to life are to be respected and those vitiating the same are to be brought to book.A campaign aimed at educating the masses dispelling the rumours and unfounded perturbations coupled with fears about Covid-19 is what is missing at the moment.

With the dreadful curve of Covid-19 spiking higher everyday, none of us is sure of what is in store for us in the days to come. More and more deaths seem to be in the offing. As we keep on trying hard to keep the pandemic at bay, we can not afford to lose sight of those who are dying from amongst us as well; we owe them a debt of gratitude and respect at the parting hours.

Mohammed Shahjahan: Advocate, Supreme Court of Bangladesh.

E-mail: shahjahanmohammed38@gmail.com