Right to Decent Burial: Preliminary Observations of the Allahabad High Court in the Hathras Case

By- Akshita saxena, The author is associated with an online legal news portal. Opinions are personal.

The brutal rape of a 19-yr old woman in UP’s Hathras district and subsequent midnight cremation by the state authorities has sparked a controversy regarding the unbridled exercise of executive power by the State and utter lack of sympathy towards the citizenry.

The barbaric incident in fact constrained the judicial institutions of the Country to take cognizance of the matter and address the issue of apparent ‘high-handedness’ of the state.

The matter before us, of which we have taken suo moto cognizance is of immense public importance and public interest as it involves allegation of high handedness by the State Authorities resulting in violation of the basic human and fundamental rights not only of the deceased victim but also of her family members,” the Allahabad High Court had observed.

The Court was “shocked” at the manner in which first, the perpetrators had gone to the extent of mutilating the woman’s tongue, presumably with the intent of preventing her from giving a statement to the Police, and thereafter the manner in which the state administration “perpetuated the family’s miseries” by depriving them of the right to cremate their daughter’s body as per customary rites.

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 his death. It being the legal position, the deceased victim after her death was entitled to honourable, decent and dignified last rites/cremation to be performed by her family members in keeping with the customs and traditions followed by the family…,” the High Court held.

The victim’s parents have informed the Court that they could not even see their daughter’s face for the last time as the authorities refused to hand over her body to them and they were not allowed to cremate her in accordance with the Hindu rituals.

The authorities on the other hand submitted that it was only with the father’s consent that the body was cremated. They also told the Court that midnight cremation was necessary to prevent political subterfuge.

Whereas the matter is pending investigation, and given the general trend of how criminal cases are investigated in India, a long wait is anticipated before the perpetrators and errant officials are truly brought to books, the High Court strongly remarked that if the allegations are true, the State had “blatantly” impinged upon the basic human and fundamental rights enshrined under Article 21 and Article 25 of the Constitution of India, “something which is absolutely unacceptable in our country governed by Rule of Law and the Constitution.

As of now, the primary concern of the Court is whether there has been gross violation of the fundamental rights of the deceased victim and the family members of the victim.

The question of law framed to this effect is thus:

whether the hasty cremation of the dead body of the victim in the odd hours of the night without revealing her face to the family members and allowing them to undertake the necessary rituals in the absence of their consent and presence would amount to the denying decent cremation in gross violation of her fundamental/human rights as enshrined under Articles 21 and 25 of the Constitution of India?

It shall also examine the larger issues involved in the context of such rights which are generally available to all residents of the State and even beyond it so that valuable constitutional rights are not compromised casually and whimsically.

Significant Observations

During the course of hearing, the High Court made several significant observations to underline that the right to lead a dignified life and the right to decent burial/cremation, are sacrosanct and any violation thereof raises a “larger issue”which may impact the rights of other residents as well.

The rights of individual citizens in the Country and the State especially that of the poor and the downtrodden such as the family members of the deceased victim and the deceased herself are paramount and the Courts of Law are under a bounden duty to see that the said rights available under the Constitution are protected at all costs,” the Court stressed.

After hearing both the parties however, the Court recorded its prima facie dissatisfaction as to the observance of last rites as per traditions and customs of the family, while cremating the victim’s body.

The victim was at least entitled to decent cremation in accordance with her religious customs and rituals which essentially are to be performed by her family. Cremation is one of the ‘Sanskars’ i.e., antim sanskar recognized as an important ritual which could not have been compromised taking shelter of law & order situation,” it remarked.

Further, the following preliminary observations of the High Court assume relevance vis-à-vis the subject at hand:

1. “India is a country which follows the religion of humanity, where each one of us are supposed to respect each other in life and in death. However, the above facts and circumstances, as of now, ex facie, reveal that the decision to cremate the victim in the night without handing over the body to the family members or their consent was taken jointly by the administration at the local level and was implemented on the orders of the District Magistrate, Hathras. This action of the State Authorities, though in the name of law and order situation, is prima facie an infringement upon the human rights of the victim and her family.

2. “We do not at this stage find any good reason on behalf of the administration as to why they could not hand over the body to the family members for some time, say for even half an hour, to enable them to perform their rituals at home and thereafter to cremate it either in the night or next day.

3. “Admittedly, though the administration may not have categorically refused the family members to see the face of the deceased but the fact remains that it was not shown to any of them in spite of their repeated requests. Thus, the expanded fundamental right to life to live with dignity and to exist with dignity even after death as well as right to decent burial/cremation appears to have been infringed hurting the sentiments of not only the family members but of all persons and relatives assembled on the spot.

Another aspect that the Court will look into is whether the State Authorities have acted oppressively, high-handedly and illegally, to violate the victim’s rights. An ancillary issue which arises in this context is whether such high-handedness was displayed because of the economic and social status of the victim’s family.

In this context, the High Court observed,

Sensitivities of the people which the constitution recognizes as fundamental rights such as a right to decent burial/cremation as per traditions and customs followed by the family, have to be respected and if considerations of maintenance of law and order are pitted against such 9 valuable rights, the situation needs to be handled deftly and responsibly on a proper appreciation of both the aspects as such valuable rights cannot be trampled or trifled casually or whimsically especially when those likely to be deprived are of the downtrodden class, uneducated and poor.

Note: Writ proceedings with regard to this case are also pending before the Supreme Court.

Legal Jurisprudence

Jurisprudence on the right to die with dignity under Article 21 is not novel and as long ago as in 1989, the Apex Court recognized the “right to dignity and fair treatment” of the dead as a facet of Article 21 of the Constitution. In Parmanand Katara, Advocate v. Union of India & Ors., it held,

the word and expression ‘person’ in Article 21, would include a dead person in a limited sense and that his rights to his life which includes his right to live with human dignity, to have an extended meaning to treat his dead body with respect, which he would have deserved, had he been alive subject to his tradition, culture and the religion, which he professed. The State must respect a dead person by allowing the body of that 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 law, the preservation of the dead body and its disposal in accordance with human dignity.

Similar orders were also passed by the High Courts of Madhya Pradesh (in 1963), Kerala (in 1971), etc.

In Ashray Adhikar Abhiyan v. Union of India (2002), 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, was discussed by the Apex Court and after being satisfied as to the steps taken by the authorities towards the same, the writ petition was disposed of.

Presently, the Top Court is seized with a suo moto writ petition concerning manhandling of dead bodies amid the Covid-19 pandemic.

We notice that there is no proper adherence to the guidelines nor the hospitals are giving due care and concern to the dead bodies. The patients’ relatives are not even informed for several days of the death of the patient as has been reported in the media. It is also brought to our notice that the details of cremation as to when the dead body will be cremated are not even informed to their close relatives. Due to which the families of the patients are not even able to see the dead bodies or attend their last funeral rites,” the Top Court observed while directing the State authorities to take appropriate steps.

The order passed by the Madras High Court in April this year, in the suo moto case concerning a mob attack against burial of a Covid positive patient is also significant where it was categorically held “the scope and ambit of Article 21 includes, right to have a decent burial.” The lead was followed by the High Courts of Karnataka and Calcutta.

It may be cautiously noted that there are several international conventions and domestic laws in foreign countries also, that touch upon offences concerning dead bodies. (To be discussed in Part II of this article)

Conclusion

The heinous nature of the Hathras case has compelled the Courts to re-examine the scope of right to a decent burial. The case therefore has the potential to set standards of a decent cremation/ burial and evolve guidelines to protect the same. In this regard, the Allahabad High Court has already intimated that if it finds the authorities guilty of foul play, then it shall take “strict action” and “fix accountability”, even for future guidance.

In the meanwhile, the Court has directed the State Government to come out with a “draft policy” to protect the right to exist with dignity even after death as well as the right to decent burial/ cremation.

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