By: Arshia Jain
Introduction
As per Section 11 of the Indian Penal Code, a person is defined as any corporation, association, or group of people, whether incorporated or not. Laws in India makes it illegal to act irresponsibly around dead bodies.
Section 297 describes a “Whoever, with the intent of wounding the feelings of any person or insulting the religion of any person, commits any trespass in any place of worship, on any place of sculpture, or any place set aside for the performance of funeral rites or as a depository for the remains of the dead, with the expertise that the sentiments of any person are probable to be maimed, or with the wisdom that the spirituality of any individual is likely to be affronted thereby, or offers any ignominy to any human”
Trespasses on statues and areas set aside for the performance of funeral rights and depositories for the deceased are dealt with more precisely in this section. The essence of the section is trespassing on places of sculpture indignity to a corpse or disturbance to persons assembled for a funeral ceremony with the intention or knowledge of the likelihood of wounding feelings on himself religion, and who, with that intention or knowledge, trespass on places of sculpture indignity to a corpse or disturbance to persons assembled for a funeral ceremony as common that the offense is completed.
A person who is responsible for properly burying a corpse has rights, including the right to ownership of the body for burial, the right to preserve and safeguard the burial site, and the right to file legal action if the burial site is disturbed. A human body is regarded as a quasi-body with no property rights, and after burial, the body becomes part of the earth in which it is buried. The right disposal of a deceased individual is a topic of intense public attention.
It is widely acknowledged that it is the duty due to both society and the departed to bury the body as soon as possible. Whoever has the authority to bury the descendent is responsible for this responsibility. The responsibility was placed by law on the individual who died under the house of the deceased. In India, the right to a respectful burial is respected, however, no Indian law specifies who is entitled to be buried. Unless the dead are provided differently before death, the right usually passes to the surviving spouse, or if there is none, to the next of kin. For individuals who have an interest in the remains, the burial right is a sacred trust.
Article 21 and its Expansion
Article 21: Right to Life and Personal Liberty Protection
This article has the broadest reach of any in the Constitution. The interpretation of the same has been regularly supplied by courts. The Right to Life also encompasses the Right to Privacy, the Right to Dignity and Fair Treatment, the Right to a Dignified Death, and the Right to a Dignified Burial, among other things. At LIC, I feel Article 21 is more akin to a Life Insurance Policy. It gives you various rights during your life, and it continues to provide you with rights when you die. “Zindagi Ke Saath Zindagi Ke Baad” [In Life and Beyond Death] is the LIC motto.
In plain terms, Article 21 guarantees a person’s rights not just during his or her lifetime but also after death. The scope of Article 21 of the Indian Constitution has been reviewed and expanded by several High Courts. The Right to Life has acknowledged the need of providing sufficient care and respect to the dead person even after death by incorporating The Right of Cremation with proper kindness and respect are guaranteed under right to livelihood.
For starters, in the 1962 decision of Kharak Singh Vs State of Uttar Pradesh[1], the scope of the Right to Life was broadened to encompass the Right to Life with Human Dignity, rather than just ‘Animal Existence.’
Later, in the case of Common Cause (registered society) Vs Union of India[2], it was argued that the right to a dignified life applies even after death. By offering a suitable death procedure, the deceased individual should be treated with the same dignity.
Burial should be carried out “following religious principles” [as the faith requires].The Supreme Court of India reaffirmed it in Ashray Adhikar Abhiyan Vs Union of India[3]. The dignity of the deceased should be protected and respected by religious norms and rules.
The court held in Vikash Chandra Guddu Baba Vs The UOI & Ors[4] that it is the state’s and hospital’s obligation to dispose of unclaimed or any Jane Doe under the legislation of the land. If the deceased’s religion can be determined, the final rites must be administered per the deceased’s religious practice.
Furthermore, the Supreme Court ruled that the term “person” does not refer to a living person in the strictest sense. In very rare circumstances, the term ‘person’ can also refer to a deceased individual. [Union of India Vs Parmanand Katara[5]]
In layman’s words, Article 21 – Right to Life covers the right to live with dignity and respect, as well as the right to die with dignity and respect. The government must show respect for a deceased person by permitting the corpse of a deceased person to be handled with the same decency and respect accorded to any living person. It is self-evident that the government must also safeguard and defend the rights of a deceased individual. And ensure that everyone is given a dignified burial following their religious beliefs.
Other Laws
Disposal of remains laws includes suitable burial facilities, the right to be buried with dignity, and the right not to be retrieved from the grave for any cause other than those listed in the law for any criminal inquiry or the welfare of society. The most heinous crime against corpses is necrophilia (sexual intercourse with or attraction to corpses), which is a crime covered by Section 377 (Unnatural Offences) of the Indian Penal Code. Although the Hon’ble Supreme Court of India ruled in the landmark case of Navtej Singh Johar Vs Union of India[6] that the application of Section 377 to consensual homosexual intercourse was unconstitutional, the Section remains in Dishonest misappropriation of a deceased man’s property is a crime under section 404 of the IPC. Criminal defamation is a crime under Section 499, which deals with libel or slander against a deceased person.
Criminal intimidation is defined as an infraction under Section 503 of the IPC, which involves threatening a person with harm to the reputation of a deceased person close to him. As explained previously, Section 297 of the IPC, which deals with the offense of encroaching on cemeteries, etc., states that anyone who induces disgrace to any decomposing body or causes a perturbation to any citizens constructed for the effectiveness of mortuary rites shall be punished with imprisonment of either synopsis for a period that may be expanded to one year, or a fine, or both.
International Laws
Geneva Convention of 1949: International Treaties and Laws: “As far as military considerations allow,” says Article 16 of the Covenant, “each party to the war should aid the efforts taken to safeguard the slain – against ill-treatment.” “The remains of the dead, regardless of whether they are combatants, non-combatants, protected persons, or civilians, are to be respected, in particular their honor, family rights, religions convictions and practices, manners and customs at all times,” according to Australia’s Defence Force Manual from 1994. “The deceased must be protected against cruelty,” according to the 1958 UK Military Manual.
Bodies are disposed of in a variety of ways.
The United Nations Commission on Human Rights: In 2005, the Commission on Human Rights and Forensic Science issued a resolution emphasizing the significance of human remains being handled with dignity, including proper management and disposal, as well as regard for the needs of families.
Crimes against the corpse: RIP, or Lie in Peace, is a Christian inscription that has existed since the beginning of time, indicating that corpses have the right to rest undisturbed and unmolested. “Across history, tribes with practically no other rites in common respect their dead with veneration,” said William Henry Francis Bsevi in his book “Burial of the Dead.” Respect is so deeply ingrained in us that we even agree to treat our opponents’ bodies with care.
Right to a Dignified Death: When the “right to a dignified burial” is broken, the “right to die with dignity” is also breached. On March 9, 2018, a five-judge Supreme Court bench in the well-known case of Common Cause Vs Union of India, which dealt with the issue of euthanasia, laid the way for the constitutional right to die with dignity to be recognized. The right to die with dignity, it was argued, is an integral and inextricable part of the right to live with dignity.
The Judges noted that, in the case of a dying man in a chronic vegetative condition, his natural death process had already begun, and that, because death is impending and definite, he has the right to die with dignity. The Court determined that the right to die with dignity is a fundamental right and hence a component of Art. 21. The right to a dignified existence goes all the way to death, including the dignity of death procedure.
And, if we understand this as a ‘dignified procedure of death,’ it will also include a dignified disposition of the deceased, as the Court has done in previous cases. The right to die without pain and suffering was deemed essential to one’s physical autonomy and integrity in this case, and the right to a respectful burial is also a key feature of Article 21 of the Constitution.
Cases
State of Maharashtra Vs Pradeep Gandhy[7]
A lawsuit has been filed in Bombay High Court contesting a BMC circular designating burial places for COVID-19 patient remains. The petition was, however, rejected by the HC. “The right to a dignified burial is recognized as a pillar of the Dignity protected by Art.21,” the Court said. There is no reason why a person who dies as a result of a suspected or confirmed COVID-19 infection during this period of crisis should not be entitled to the same services that he or she would have been entitled to if the crisis had not occurred.
Similarly, while noting that the Fundamental Right to Life guaranteed by the Constitution includes the Right to Decent Burial or Cremation, the Madras High Court urged people against protesting to the disposal of the corpses of COVID-19 victims in High Court on its own motion.
Vineet Ruia Vs Principal Secretary[8], MOHFW, West Bengal Government
The Calcutta High Court recently ruled that Article 21 of the Constitution applies to both living and dead people. The court went on to say that doing so for the sake of tradition and culture is an FR that can be linked back to Article 25. Furthermore, in the matter of R. Sameer Ahmed Vs State of Telangana & Ors[9], the Telangana High Court stated: “Even in death, human corpses are not handled with the dignity they deserve,” the judge said, ordering the state administration to inform the court if the bodies are being incinerated or buried in a dignified way.
Conclusion
Except for the rights outlined before, the law does not specify any specific rights for the deceased. The Indian Succession Act, 1923, contains provisions for the transmission of a person’s will after his or her death. A person’s right to his or her body after death is protected under the Human Organs Act of 1994, which states that no one can use or transplant a person’s organs unless and until the person’s permission was gained while he or she was alive.
The Indian Constitution further states that the state is required to maintain sanctions to remove anybody that poses a threat to the safety of other living beings and dispose of it properly. As previously noted, an unclaimed body must be claimed by the state and examined by police and medical personnel in the order in which it is clear from the body that the death was not natural.
The state is also obligated to avoid any hazardous repercussions of the body and to defend the rights of such person in the enlarged sense of Article 21 of the Indian Constitution for dignified and decent burial or cremation according to the man’s religious beliefs.
The right to a quiet burial is a basic right, as the High Court stated, but difficulties such as these should be recognized as well. There have been violations of any laws as a result of the privatization of medical education, which has resulted in the mushrooming of medical and dentistry institutions in India because the laws are unable to keep up with the development and changing circumstances. The media has covered several crimes, including the illegal trade of human dead body organs, which is prohibited by Article 21 of the Indian Constitution, the Transplantation of Human Organs Act, 1994, and other laws.
These crimes occur mostly because MBBS students are expected to dissect the human body in their first year of medical school to assist in detailed instruction of human anatomy, and the anatomy department needs dead bodies for the same reason. These are just a few of the reasons why such issues are becoming more prevalent in India.
References
- https://sabrangindia.in/article/do-dead-have-rights-india
- https://www.thehindu.com/news/national/tamil-nadu/right-to-decent-burial-is-part-of-fundamental-right-to-life-says-hc/article31392061.ece
- JIAFM,2007 29 (1) ISSN: 0971-0973
- http://medind.nic.in/jal/t07/i1/jalt07i1p21.pdf
- Nithari Killings
- The Minimum Standard Requirements of MCI for the Establishment of 50, 100, 150 Admissions, 1999.
- The U.P. Anatomy Act, 1956 (U.P. Act No. VI of 1957).
- The Indian Succession Act, 1925 (Act No..39 of 1925).
- The Criminal Procedure Code, 1898(Act No. V of 1898)
- The Criminal Procedure Code, 1973 (Act No.2 of 1974)
- Constitution of India.
- Indian Penal Code,1860.
- William Henry Francis Basevi. Burial of the Dead, 1920.
- Geneva Convention,1949.
- Kharak Singh Vs State of U.P AIR 1963 SC 1295,130.1,1305 ↑
- Common Cause Vs Union of India (2018) 5 SCC 1, AIR 2018 SC 1665 ↑
- Ashray Adhikar Abhiyan Vs Union of India (2002) 2 SCC 27 ↑
- Vikash Chandra Guddu Baba Vs The UOI & Ors (2008) 2 PLJR 127 ↑
- Union of India Vs Parmanand Katara (1989) 4 SCC 286. ↑
- Navtej Singh Johar Vs Union of India (2018) 10 SCC 1 ↑
- State of Maharashtra Vs Pradeep Gandhy 2020 SCC OnLine Bom 662 ↑
- Vineet Ruia Vs Principal Secretary (W.P. No. 5479 (W) of 2020) ↑
- R. Sameer Ahmed Vs State of Telangana & Ors AIR 2021 ↑