Does the haphazard burial of people who were dead due to Covid-19 violates the Rights of a Dead body?

By Athik Saleh T

RIP or ‘Requiescat in Peace’ is a Latin inscription that is found on Christian tombs. It means ‘rest in peace’. A sign of respect to those who are dead. A sign recognizing the right of the dead to remain silent and in peace.

Similarly, all cultures around the world, even those that are thousands of miles apart, have one similarity – the reverence with which the last rites of the dead are committed.

India is no different when it comes to the treatment of the dead. From time immemorial, the people who lived in the sub-continent have revered the dead. It is clearly evident from various excavated burial sites across India.

These burial sites, although belonging to different time periods and cultures, shared one thing in common – the respect shown to the dead by the living.

Fast forward to the 21^st century. It is 2021, the world is still learning to live with a pandemic that has taken the lives of millions. In India, the country is dealing with the second wave of COVID-19 infections. In May, the country witnessed one of the ghastliest sights it has ever – a large number of corpses in the Ganges, both in the banks and in the river itself!

The second wave of Covid-19 infections in India dealt an entirely different deck with the lack of oxygen supply, shortage of wood for cremation, etc. Along with this came washed-up corpses of people supposedly died due to COVID-19. These bodies were either directly dumped into the river or were buried in shallow graves on the banks of the Ganges.

Indians and the world were both astounded and terrified at what they were looking at but nothing was surprising about it if anyone paid attention to the pandemic forced reality we were in – people did not have enough money to even cremate their dear ones.

The living has rights, and the living can fight for their rights if violated, but what of the dead? Do they have rights, and even if they do, who is to enforce those rights when violated? One has to assume that the corpse of a dead person floating in a river is certainly not desirable.

To understand the implications of this ghastly even, we must take a deep dive into the trenches of the rights regime, both nationally and internationally, and investigate how it sees a dead person.

Thus, this article elaborates on the concept of Rights of the dead in wake of the haphazard burials of people infected with Covid-19.

What does the International Rights Regime talk about Rights of the Dead?

Death is a fact. A reality that everyone awaits, whether they are aware of it or not. When alive, no matter what the human rights law talks about, people are not equal. They are differentiated by race, nationality, color, religion, gender, wealth, etc.

However, when dead, these factors that put human beings in different categories come to end. As the Roman poet Claudius Claudianus once said, “death is a great leveller”.

It is true, death brings a level of equality between human beings no other act of human beings can achieve. No matter who the dead person is, they are revered. The Latin phrase “De mortuis nil nisi bonum dicendum est” which translates into “of the dead, nothing but good is to be said”, and more freely translated into the common saying “do not speak ill of the dead” is another example from the ancient history that tells us about the reverence with which the dead were looked at.

In Antigone, written in the 5^th century BC, Sophocles talks about how the dead must be treated with respect and dignity and how this cannot be overridden by the Government.

Similarly, another instance from antiquity can be seen in Homer’s condemnation of Achilles’ disrespect to the body of a person he killed. Such examples can be found across various cultures, literature, etc.

This shows that how treating the body of the dead with dignity and respect was instilled in the psyche of the people of the ancient past even before international law attempted to identify and codify the same.

One of the core obligations of the state towards the dead body of a person under international law is to dispose of the remains in a dignified, and respectful manner by taking into account the religious and cultural traditions, and the wishes of the next of kin.

There are various provisions in international human rights law and humanitarian law regarding the rights of a dead person, and they are:

• According to Article 9 of the European Convention of Human Rights, where return to family or repatriation of the body is not possible, the body must be treated in a decent, dignified and respectful manner with due regard to religious and cultural traditions, if known.
• Article 130(1) of the Fourth Geneva Convention provides for honourable burial of a deceased person. The Article also provides that deceased persons must be buried according to the rites of the religion to which they belonged if possible.
• According to Article 16 of Fourth Geneva Convention, the parties in conflict must take necessary steps to protect the body of a deceased from ill-treatments.
• The Cairo Declaration on Human Rights in Islam of 1990, in Article 3 (a), prohibits the mutilation of dead bodies.
• In a resolution adopted in 2005 by the UN Commission on Human Rights, it was stated that human remains must be handled with dignity. According to the resolution, this included proper disposal of the remains.
• The Inter-Agency Standing Committee of the United Nations issued guidelines on Human Rights and Natural Disasters states that where human remains cannot be returned to the next of kin, the body must be disposed of in a respectful manner. As per the guidelines, all burials should be done in a manner that respects the dignity and privacy of the deceased and their family.
• The European biomedical law (Additional Protocol on Transplantation of Organs and Tissues of Human Origin) also talks about the treatment of bodies. This is important because they too talk about protecting the dignity and identity of the deceased.

Although the law mentioned above are not talking specifically about the topic we’re discussing here, they all have a common theme – treating the body of a deceased with dignity and respect. No matter what caused the death, international law looks at the body of a dead person as something that should be treated with utmost care.

International law places the duty on the state to make sure that the final passage of a human being, whatever his/her place in life was, be carried out in a dignified manner.

How does the Indian Legal System look at the Rights of the Dead?

The Fundamental Rights provided in Part III of the Indian Constitution talk about the rights of the living. As is always the case, when there is no specific mention of a right, one must look at Article 21 to provide the solution. Along with Article 21, one must look at what the judiciary’s stand has been regarding the rights of the dead.

The recognition of posthumous legal rights can be traced back to the decision of the Supreme Court in Parmanand Katara Vs Union of India^[1]. In this case, the Court for the first time held that the rights granted by Article 21 don’t stop at the death of a person.

His right to life and dignity also extends to his dead body. This was the first instance of constitutional recognition of the rights of the body of a deceased as this gave significant moral standing to the dead.

In P. Rathinam Vs Union of India^[2], the Supreme Court again talked about how Article 21 encompasses the right of the dead to be treated with dignity.

Again, in Ashray Adhikar Abhiyan Vs Union of India^[3], the Supreme Court reiterated the dignity of the dead and how it must be maintained. What is interesting about this judgement is that the Court held that even a homeless deceased person must be given a decent burial, and the duty to make sure that such a burial is provided to people was entrusted to the state.

Another interesting judicial pronouncement on this matter is Allahabad High Court’s judgement in Ramji Singh and Mujeeb Bhai Vs State of U.P. & Ors.^[4]. The Court in this case held that the right to life includes a person’s right to be treated the same way as he was alive even after his death.

Fast forward to 2020, in Vineet Ruia Vs The Principal Secretary, Department of Health & Family Welfare, Govt. Of West Bengal & Ors.^[5], the Calcutta High Court held that the right to dignity and fair treatment provided under Article 21 isn’t just limited to the living but also the corpse of the deceased. The Court also held that disposal of a human body, no matter what the cause of this death, should be done with respect and dignity.

Similarly, in April of 2021, the Telangana High Court in R. Sameer Ahmed Vs State of Telangana^[6] observed that human bodies are being treated in a manner which isn’t dignified and respectful.

Although Article 21 forms the foundation upon which the rights of the dead are built, there are other provisions like Sections 297, 404, 499, and 503 of the Indian Penal Code, and the Transplantation of Human Organs and Tissues Act, 1994 which talks about the rights of the dead.

Conclusion

The body of a deceased must be treated with dignity and respect. That much is clear from the foregoing discussion. The state’s duty in ensuring the same is also clear from both international obligations and judgements of both the Supreme Court and various High Courts.

It is easy to say that the state must ensure a proper burial for those who were dead due to Covid-19 infections. However, we must not forget that the challenges presented by Covid-19 due to mass deaths were new to both 21^st century Indians and the Government itself. It doesn’t absolve the state of its responsibilities though.

The most common reason pointed out by the dear ones of some of the deceased whose bodies were found in the Ganges was their inability to afford a proper cremation. This was magnified by the paucity of wood which made the process even more expensive.

People were left with no choice but to bury their loved ones in shallow graves or dump the body in the river. The social stigma associated with being a part of the last rites of someone who was died of Covid-19 made the option of conducting proper cremations even a harder one to choose for the relatives of the deceased.

As a welfare state, the Indian Government and responsible state governments (Uttar Pradesh and Bihar) can’t wash their hands off by blaming the people for the unfortunate incident.

The rights guaranteed by Article 21 to the body of a dead person, including the most important right of a decent, dignified and respectful burial is one that cannot be violated. When people are forced into a corner, they will do whatever is necessary to get out of that corner.

This is exactly what happened with the relatives of those who were buried on the shores of the Ganges and were later found in the river. It is the duty of the state to ensure that those who were died due to the pandemic get a proper and dignified send-off. It is the least they deserve.

References

• hindustantimes.com
• indianexpress.com
• thewire.in/health
• thewire.in/rightsy
• thewire.in/rights
• icrc.org/en

1. Parmanand Katara Vs Union of India, AIR 1989 SC 2089 ↑
2. P. Rathinam Vs Union of India, AIR 1994 SC 1844 ↑
3. Ashray Adhikar Abhiyan Vs Union of India, AIR 2002 SC 554 ↑
4. Ramji Singh and Mujeeb Bhai Vs State of U.P. & Ors., Civil Misc. Writ Petition No. 38985 of 2004 ↑
5. Vineet Ruia Vs The Principle Secretary, Department of Health & Family Welfare, Govt. Of West Bengal & Ors., WPA 5479 of 2020 ↑
6. R. Sameer Ahmed Vs State of Telangana, WP (PIL) Nos: 56 and 59 of 2020 ↑