Written by Sulagna Sarkar of South Calcutta Law College.
“Death is not the opposite of life, but a part of it” – Haruki Murakami.
This is the traditional practice of human being across the planet to celebrate the birth of humans and goes on console and condolence on death. The only guaranteed thing that human being brings with him along with his birth is death. Death is unavoidable in all or any circumstances and an integral part of life. The last thing to do by the keen and kith of a human being after his death is the dignified funeral, which is obviously supported by Article 25 of Indian Constitution.
But alas! The new phenomena on pandemic situation across the globe changed the scenario. In India death occurred due to infection of covid-19, death bodies are not handed over to the relatives of the deceived for the rituals of funeral. Is it worthy to be supported in the light of law? The answer is obviously NO. If the Constitution ensures the RIGHT TO LIFE with dignity then why not after death, as death is the ultimate of human life.
Distressing media reports are approaching, for instance dead bodies were piled up in hospital wards along with patients in New Delhi. It has been declared that the families of dead victims have to console and satisfy themselves through the name tag marked on covered dead body, after which the staffs would take it to burial/cremation ground. The body of a 69-year-old doctor, who died of COVID-19 complications, was laid to rest after 2days in localities elsewhere in Shillong and restricted his last rites for fear of contagion. Also, in Pondicherry, medical workers were found disgracefully dumping the body in a pit at burial ground. Such desolating incidents are leading people to raise their voice with respect to basic human rights which includes dignified funeral as a part of right to die with dignity.
JUDICIAL ACTIVISM ON RIGHT TO HAVE DIGNIFIED FUNERAL OF COVID-19 DEAD VICTIMS
With this practice of restraining the families of the dead victim from getting the dead body and ignorance of medical authority towards it, many high courts incited that RIGHT TO LIFE also includes RIGHT TO DIE WITH DIGNITY. Every human being is entitled to a decent farewell according to his or her religious rites as per Articled 21 of the Constitution.
Also the Bombay High Court dismissed pleas filed against Mumbai Municipal Authorities for permitting burial only at three cemeteries in Bandra, the plea was forwarded on the fears of COVID-19 contagion from dead bodies. However, there is no scientific basis which suggests that COVID-19 can be contaminated from dead bodies after taking all the safety measures. The bench said in its order that ‘Right to a dignified 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’.
On 6th June 2020, a Public Interest Litigation (PIL) has been filed under Article 226 of the Constitution in the Calcutta High Court, seeking to direct the authorities to hand over the dead bodies of persons who have died on account of COVID-19 to the family members for burial/cremation. Also Delhi High Court took suo moto cognizance on a newspaper report of horrific handling of dead bodies of the victim.
Finally on June 2020, the Supreme Court of India took suo moto Cognizance on reports of mishandling of Covid affected dead bodies. Subsequently, the Court asked for a response of the Centre in pursuance of earlier directions issued by it, related to dignified handling of COVID-19 dead bodies in hospitals and burial grounds.
Article 21 provides that ‘No person shall be deprived of his life and personal liberty except according to the procedure established by law’. In the landmark judgment of Mujeeb Bhai v. State of UP, Supreme Court and High Courts of India have made it clear that there are certain rights which extend to people even after their death. High Court of Allahabad in this case, has ruled that the word and expression ‘person’ in Article 21, includes the dead person in a limited sense and right to life with dignity should be extended in such a manner that his dead body is given respect, which he would have deserved, had he been alive subject to his tradition, culture and the religion, which he professed. The society should not be permitted to do any disgrace to the deceased.
In Parmanand Katara v. Union of India, the Supreme Court expressed 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 to his body after his death”.
In various cases, the Honorable Supreme Court have delivered their judgment on proper rituals that must be followed and proper treatment that are be given to dead bodies.
DOES THE DECISION OF SUPREME COURT CONTRADICT PUBLIC HEALTH AGENDA?
This is not unknown to all that how gigantic shape the spreading of Corona virus can take rather has already taken. But it has been stated by various medical experts and microbiologists that there is very minimum chances of spreading of novel corona virus from a dead body. Also DMO K.J. Reena has stressed that COVID-19 will not spread from dead bodies that have been buried ore cremated but must be in compliance with all protocols. Since the body fluid of the deceased are not suppose get in contact with others.
The SARS-CoV-2 virus is like a pen drive. Within itself, a pen drive contains a memory storage chip, a USB controller, some more ‘tiny nuts and bolts’ and sometimes a mini LED light. All this is confined within a metal or plastic case. It is a compact device and the only part that connects out of the case is the USB connector which can fit into the port of a desktop/laptop.
Functionally the pen drive contains huge data for storage, transport, copying and visualization. But none of that can be done unless the USB connector anchors onto the computer. It is only then that the pen drive ‘comes to life’ and the data inside get functional.
Besides all these aspects, we should be more careful as well as respectful about the dead bodies of Covid victims. However, many people forget the requirement for physical distancing when they attend funeral functions. This is the reason why these functions are becoming the hub of spreading of the disease. In lieu if paying respect and providing dignity to the dead human one should not compromise with safety and safe measures prescribed by WHO.
We should keep away from the disease by maintaining the protocol and giving due respects to the dead victims of Covid 19. At a local level, health agencies must commute with civil society or create small support group for spreading scientific awareness and clearing several associated misconceptions.
COMPARATIVE ANALYSIS IN RESPECT TO OTHER NATIONS
The United States has updated the CDC guidelines for funeral management in July 2020 for safely grieve and honour their loves ones during the pandemic.
The more people interact, the closer in distance the interaction is (less than 6 feet), and the longer the interaction lasts, the higher the risk of spreading COVID-19.
Take extra precautions for those at increased risk for COVID-19, particularly those who are older or have pre-existing conditions, to help lower the risk of spreading COVID-19.
But grief is a normal behavioral outcome to losing someone important. People often becomes more emotional with the news of death of loves ones. So to bid last goodbye to their loved ones even if the person is a Covid 19 victim, CDC guidelines have set up; they are as follows:
I. Using technology to connect virtually with family and friends during the grieving process or doing it by maintaining social distancing of minimum 6 feets between two consecutive persons.
II. Considering modified funeral arrangements, such as limiting attendance at funerals held during shortly after the time of death to a small number of immediate family members and friends; and then holding additional memorial services when social distancing guidelines are less restrictive.
III. Considering modifications to funeral rites and rituals (for example, avoid touching the deceased person’s body or personal belongings or other ceremonial objects) to make sure of everyone’s safety.
IV. Wearing masks while around others and outside of your home.
But in India no such guidelines or protocols have been set up or maintained for the purpose of funeral of Covid victims. Dead bodies of Covid victims are handled mercilessly.
Also in a developing and over populated country like India such usage of technology and avoiding social gathering are not at all possible.
U.K has enacted a special act during the pandemic to walk accordance to it as ‘CORONA VIRUS ACT, 2020. Section58 of the Act deals with the transportation, storage and disposal of the dead bodies of Covid victim.
One of the recent prominent legislation in Australia is Covid-19 Emergency Response Act, 2020, which also possesses provisions regarding handling of Covid dead bodies.
In India the Health Ministry only issued guidelines towards precaution and preventions for handling the Covid infected dead bodies by the medical workers. These include:
• Hand hygiene;
• Use of personal protective equipment (e.g., water resistant apron, gloves, masks, eyewear);
• Safe handling of sharps;
• Disinfect bag housing dead body; instruments and devices used on the patient ;
• Disinfect linen. Clean and disinfect environmental surfaces.
The preamble of Universal Declaration of Human Rights says, ‘where as recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’. And to establish justice, freedom and peace in the world, the life with dignity of human is the essential tool. As death is the ultimate and integral part of human life, this inherent rights of human cannot be ignored even after his/her death.
But there are no such codified laws in India which articulates that right to have a dignified funeral comes under the scope of Article 21 of Indian Constitution.
With due course of time several high courts and the Apex Court firmly held that RIGHT TO LIFE WITH DIGNITY extends even after the demise of human being as an ethical part to preserve basic human rights. As a result, RIGHT TO HAVE DIGNIFIED FUNERAL got the facet to Article 21.
Though India has a unique nature to maintain its ethno-religious character but is far away from setting up a framed dogma about the dignified funeral of the citizens.
The Government should keep an eye on this issue and needs to update its guidelines regarding the management of death bodies and their dignified funeral.
So that death should be as beautiful as the words of Oscar Wilde –
“Yes death. 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 forgive life, to be at peace”.
Image Courtesy- The News Minute