Introduction
Everything under the sun has a legal personality. One does not necessarily have to be alive to possess legitimate rights, and the term ‘personality’ largely encompasses both living and non-living entities.
Gone are the days when infants used to breathe life into toys and deem them alive. It might as well be possible that we witness a day when these playful figurines attain rights not to be violated or ‘toyed’ with.
In almost every country, citizens are guaranteed the ‘Right to Life’ apart from various other liberties to vitalise their mortal existence unreserved. Once a person’s life ceases to exist, he loses most of such rights. However, some of them do pass on with him, like the right to be buried with a respectable and decent burial to ensure that his last rites are performed without any hindrance, the way he wished when alive or in the customary manner his family desires.
Right to have a decent Burial
“The dead are to be at rest where they have been lain unless reason of substance is brought forward for disturbing their repose.”
– Justice Cardozo[1]
When a person dies, he leaves behind a legacy of fundamental, proprietary and legal rights for his successors to cherish and carry forward. The least he deserves is a proper burial which became a pertinent point of contention when in times of war, bodies were left out in the open to decompose and be scavenged because burial grounds were too occupied.
Common Law: The first Common Law Right to Burial was established in the case of R v Taylor[2] wherein burial had to be given to avoid public nuisance.
The dignity of dead people is considered significant in English Common Law, evidenced by an amicus curiae brief to a US Supreme Court case, Knick v Township of Scott[3].
Codification: It was in 1929[4] when the need and duty to lay the dead with dignity was decided to be included in a Code through the Geneva Convention and later in the Convention of 1949[5].
The military manuals of several countries like Australia, Israel, New Zealand, the United Kingdom and the United States lay down provisions for decent burials to be provided.[6]
The Burial Act of 1857 sets forth the method and place of burial while making the violation of a grave illicit.
Article 130 of the 4th Geneva Convention on International Humanitarian Law focuses on Burial Cremation, honorary burial as per customs and usage and respect for and maintenance of graves.[7]
The UN Commission on Human Rights in 2005 elaborated upon similar lines.[8]
Indian Position
India is characterised by geographical, cultural, linguistic and ethnic diversity. Therefore, the method of burial and disposal of dead bodies also varies with different cultures.
To provide uniformity to a decent burial and ensure that all dead bodies are disposed of properly, Section 297[9] of the erstwhile Indian Penal Code elaborates upon trespassing on burial places with punishment and fines for offering indignity to any human corpse, etc.
Section 301 of The Bhartiya Nyaya Samhita, 2023 issues the same punishment for the default.
Judicial Interpretation
Indian courts have often taken cognisance of the same and tried to lay down basic rights of a decent burial for dead bodies and families of the deceased.
Fundamental Right:
In Ramji Singh @ Mujeeb Bhai v State of U.P.[10], the Allahabad High Court held that the term ‘person’ has a wide ambit as mentioned under the Right to Life and also includes a dead person within its purview, hence extending Article 21 of the Constitution of India to dead bodies too, in the same way, as it deserved when it possessed life.
Under several arenas of Jurisprudence, violating the grave was labelled a criminal offence.
Governmental Duty:
It was emphasised that the government had as much responsibility as the family of the deceased while ensuring an honourable burial and proper disposal of the dead body in the case titled, Madras Corporation Burial Ground Labour Union v Corporation of Madras[11].
Cultural Views:
In Perunchithiranar v State[12], Justice S. Natarajan emphasised the due significance of a proper burial as per the customs and culture followed in a diverse country as India:
“Every religion has its way of returning the dead bodies of human beings to the natural elements. Cremation, embalmment, burial, consignment to watery graves and offering to birds, are the known modes of returning the dead bodies to the bowels of Mother Earth. But, whatever the form of disposal of the lifeless bodies, every religion and every faith commends the dead bodies to be treated with reverence and dignity till the last vestiges of the bodies merge with the elements … Then, again, it has to be borne in mind that to the near and dear ones the mortal remains of the kindred being, whether buried or burnt to ashes, will have sentimental values which may not be shared by those unknown to and unconcerned with the deceased persons.”
Burial rights of the homeless:
In another leading case on decency of burial, Ashray Adhikar Abhiyan v Union of India[13],
the petitioners, in a letter written to the CJI, raised concerns regarding homeless people whose dead bodies languish due to a lack of resourceful families, and who, deserve a decent burial too.
Rights of Family:
The rights of the kin or near family members to perform funerary or burial practices as per their traditions were mentioned in the case of Suo-Moto Inre Right to Decent & Dignified Last Rites/Cremat v State of Uttar Pradesh[14].
The court emphasised that the right to a decent burial is commensurate with the dignity of the individual and is a recognised facet of the right to life guaranteed under Article 21 of the Constitution of India.
Covid 19:
In Vineet Ruia v Principal Secretary[15], the issue raised was the disposal of dead bodies infected by Coronavirus into the Ganges, leading not only to pollution but also disrespect to the dead as they feared the infection being spread.
It was held that factors like death through COVID or disposal methods should not affect the fact that burial needs to be respectful and ceremonial.
Article 25 of the Constitution which ensures freedom to practice and profess one’s religious traditions also includes the right to a decent burial.
In Pradeep Gandhy v State of Maharashtra[16], the court said that the dead cannot be deprived of their right to get a decent burial on the lines of little or no proof that Coronavirus can spread through the same.
The National Human Rights Commission, in 2021, held that the right to life and dignity mentioned explicitly under Article 21 extends not only to the living but also to the dead.
The Commission also talked about the need for a peculiar legislation to protect the dignity and rights of dead people.[17]
Muslim Law
The religion of Islam guarantees the right to dignity to every human being, even those who are not born yet or alive. The holy book of the Quran sheds light upon such worth of the human body when, ‘Cain was unsure of how to deal with the body of his brother Abel—whom he had murdered—God sent a message in the form of a raven. God used the raven to dig into the ground to bury another raven, thus indirectly showing Cain how to bury his brother’s body.’[18]
Burial is considered to be a mutual duty of the community and its people, and every person will be guilty if the body of a Muslim person is not found buried decently unless proven not guilty by intention.[19]
Cremation of a dead body is deemed to be a violation of the dignity of the body and is verboten under Shariat. The Cairo Declaration on Human Rights in Islam of 1990 provides for the prohibition of the mutilation of dead bodies.
It was held in the case of Muzaffar Manzoor Kadri v State of Goa[20] that it is essential to highlight the necessity of a decent burial ground for people belonging to the Muslim community to uplift the minorities of the country.
CONCLUSION
The world has been a primaeval spectator to numerous inhumane acts. While history boasts of times when fraternity was the base of humanity, the current generation negates the beauty of brotherhood.
Despite copious liberties, humans continue to crave power and domination, being oblivious to the fact that their doom is inevitable, in a few years or maybe, the next minute.
In such times, it becomes indomitably essential that if not in life, then at least in death, humans find peace, through a decent and dignified burial. Countries in almost every corner of the globe make sure that they provide such a provision to each person, irrespective of identity, either through Legislation or Judicial Review.
Author(s) Name: Jasmine Singh (Army Institute of Law, Mohali)
References:
[1] Yome v Gorman [N.Y. 1926] 152 N.E. [126], [129]
[2] R v Taylor [1721] Hil 7 Geo 1 B R
[3] Knick v Township of Scott [2018] 588 US: docket 17-647
[4] 1929 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field; 1929 Geneva Convention Relative to the Treatment of Prisoners of War
[5] First; Second; Third; Fourth Geneva Convention(s) 1949
[6] ‘Customary IHL, Disposal of the Dead’ (ICRC Database) <https://ihldatabases.icrc.org/en/customary-ihl/v1/rule115> accessed June 9, 2024
[7] Kanika Mawri, ‘Law in the Rights of the Dead’ (Manupatra Articles, 4 August 2021) <https://articles.manupatra.com/article-details/Law-in-the-Rights-of-the-Dead> accessed 9 June 2024
[8] Ibid
[9] The Indian Penal Code 1860, s 297
[10] Ramji Singh @ Mujeeb Bhai v State of U.P. [2009] SCC OnLine All 310 : [2009] 5 All LJ 376
[11] Madras Corporation Burial Ground Labour Union v Corporation of Madras [1992] SCC OnLine Mad 654
[12] Perunchithiranar v State of T.N. [1984] SCC OnLine Mad 242
[13] Ashray Adhikar Abhiyan v Union of India [2002] 2 SCC 27
[14] Suo-Moto Inre Right to Decent & Dignified Last Rites/Cremat v State of U.P. [2022] SCC OnLine All 527; also held in Mohammad Latief Magrey v State (UT of J&K) [2022] SCC OnLine SC 1203
[15] Vineet Ruia v Principal Secretary [2020] SCC OnLine Cal 1664
[16] Pradeep Gandhy v State of Maharashtra [2020] SCC OnLine Bom 662
[17] V. Venkatesan, ‘By Issuing Guidelines to Protect the Rights of the Dead, Has NHRC Rediscovered Its Potential?’ (The Wire, 16 May 2021) <https://thewire.in/rights/nhrc-covid-19-bodies-ganga-rights-of-the-dead> accessed 7 June 2024
[18] Ahmed Al-Dawoody, ‘Respect for the dead under Islamic law: Considerations for humanitarian forensics’ (Humanitarian Law and Policy Blog, 1 November 2018) <https://blogs.icrc.org/law-and-policy/2018/11/01/respect-for-the-dead-under-islamic-law-considerations-for-humanitarian-forensics/> accessed on 8 June 2024
[19] Ibid
[20] Muzaffar Manzoor Kadri v State of Goa [2022] SCC OnLine Bom 3529
