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What are the Rights of the Dead?

6 min read

By Meher Sunil Dabrai

Introduction

The word “person” had been derived from the Latin word “persona” which also means a mask that is worn by a person. This term was used to refer to the roleplayed by man on stage until the 16th century. With the passage of time, it later started being used in terms of somebody that has Rights or duties.

When one talks about the Rights and duties of a person, we automatically assume that this has been said with reference to people who are alive but this might not always be the case.

While most laws are made keeping the interests of living people in mind, there are also certain laws that have been made to protect the Rights of the dead. These laws mainly focus upon decent burial of Dead bodies and crimes against a corpse.

This article throws light upon the Rights of the dead.

Provisions for safeguarding the Rights of the Dead in India

Under the Indian legislation there are certain Rights that have been provided to the Dead under various enactments. They are as follows:

  • Right to Dignity and Decent Burial under the Constitution

The Constitution is the basic legal document of the country that safeguards the basic Fundamental Rights and duties of the citizens. The protection of life and liberty is guaranteed under Article 21 of the Constitution.

Apart from this, Article 21 also includes the Right to privacy, Right against solitary confinement, Right to legal aid, Right to a speedy trial among many others. In many cases, the judiciary has interpreted that the Right to have a decent burial is also vested under Article 21 of the Constitution.

It has been held in Ashray Adhikar Abhiyan Vs. Union of India[1] that it is the obligation of the State to have a decent burial to the deceased as per their religious belief. Right to dignity is another Right vested under Article 21 that is not only applicable to the living but also to the dead.

In another landmark case, Pt. Parmanand Katara Vs. Union of India[2] a public interest litigation challenging the method of execution had been filed. The Court accepted the contention that there was no need to mandatorily suspend the body of the Dead for half an hour. The only mandatory provision is that it needs to be ascertained by a medical officer that the body is dead.

Therefore, in this case the Supreme Court held that the Right to life, to fair treatment and dignity extends not only to living persons but also to their bodies after their death.

  • Rights against trespass under the Indian Penal Code

Section 297 of the Indian Penal Code states that trespassing a burial place, place of worship and place of sepulcher is a cognizable offence.

If any person commits trespass of any place that has been set up for funeral Rights or set up as a depository for the remains of the Dead or treats a Dead body with indignation or disturbs people that are carrying out the funeral rites of someone who is Dead with the intention or knowledge of wounding or insulting the religion of any person, he or she shall be punished for a term extending to one year or fine or with both.

The main purpose of this Section is to deal with the people trying to trespass places that are set up to conduct funeral ceremonies.

It shall be noted that even the person who must cremate or bury the Dead also has the Right to act against the person who tries to harm the Dead body in any way or commits this form of trespass.

  • Rights against the dishonest misappropriation of property under the Indian Penal Code

Section 404 of the Indian Penal Code deals with the dishonest misappropriation of property of a Dead person at the time of his death.

The object of this section is to protect the property that previously belonged to a Dead person while the person who is entitled to look after the property after the deceased has not yet arrived at the scene. It makes sure that no person who is not entitled to the property misappropriates it or converts it to his own use.

A person that is found guilty under this section can be punished with imprisonment for a term which may extend to 3 years and shall also be liable to a fine. If the offender is found to be a clerk or servant of the deceased, the term of imprisonment may extend up to 7 years.

  • Right against Defamation under the Indian Penal Code

Section 499 of the Indian Penal Code which deals with defamation also defines that libel or slander of a deceased person will also contribute to defamation.

In the case of Mrs. Pat Sharpe Vs. Dwijendra Nath Bose[3] it was held that even if Netaji is dead, it is defamation because the imputation would have harmed his reputation if alive and the imputation must be said to have been intended to be hurtful to the feelings of his family or other near relatives”[4] The words used by the Court in this matter are a clear indication that this amounts to defamation.

  • Rights with respect to enforceability of a Will

It is a known fact that a will that is made by a person while he is alive can only be enforced after the death of the person. However, for the enforcement to be successful, the will needs to be made in the favor of a person who is alive.

If the will does not enclose the testament for bequeathing the property to living persons, it cannot be legally enforced. Thus, it can be said that a Dead person has the Right of enforceability of the will even though such enforcement is not carried out by the person himself.

  • Rights against sexual offences

Recently, sexual offenses against the Dead have been on the rise. One recent example is the corpse of a 26-year-old woman whose corpse was gang raped in Ghaziabad in Uttar Pradesh.

The corpse had been taken out of her grave by the assaulters and then left a few feet away from the grave where it had been found naked.[5]

There have been many such horrific incidents that are often found in the newspapers but despite this, India does not have a specific law in this regard. There is a remedy wherein such offenders may be charged under Section 297 for trespass and under Section 377 for unnatural sex of the Indian Penal Code.

Public Interest Litigation in the Supreme Court to protect the Rights of the Dead amidst the Covid-19 pandemic

With the rise in the death rate in the country following the Covid-19 pandemic, a plea has been filed in the Supreme Court regarding the issue of overcharging for cremations and burials of the Dead and ambulance services amidst the pandemic.

Recently, A plea also filed in directions to the Centre for formulation of a policy in order to protect the rights of the dead.

The plea was filed following the discovery of several Dead bodies that were found floating in the Ganga River. The plea requested the Centre to consider the gravity of the issue and enact a law to ensure the Rights and dignity of the dead.

The plea also claimed that “It is deeply depressing to see people putting bodies of their beloved ones in rivers like Ganga due to lack of money. It is primarily due to exorbitant amounts asked for cremation and ambulance services that scores of people decided to put the bodies of their beloved in the river Ganga.”[6]

The plea stated that they had approached the Delhi High Court with the same matter and the High Court had on May 6th given them the liberty to appropriate representation at the concerned Municipal Corporation which was not acknowledged by the Municipal Corporations and the petitioner claims to have received no response.

Conclusion

Corpses and Dead people do not have the status of a legal person in India. Although the aforementioned remedies are available to the dead, no specific enactment has been made in this regard. In the current scenario, with the rise in improper disposal of Dead bodies and sexual offences against the dead, it has become imperative for a new enactment to be made in this regard. The PIL filed in the Supreme Court could be a major step forward in the implementation of the same.

References

  1. Ashray Adhikar Abhiyan Vs. Union of India, 2002 WCP 143 of 2001
  2. Parmanand Katara Vs. Union of India & Ors, 1989 AIR 2039, 1989 SCR (3) 997
  3. Mrs Pat Sharpe Vs. Dwijendra Nath Bose, 1964 CriLJ 367
  4. Rights of the dead under the law and legal remedies Available at: .latestlaws.com/
  5. Violating the dead: Is it time India had a law dealing with Necrophilia? Available at: thenewsminute.com
  6. PIL in SC seeks to Protect Rights of the Dead Available at: .lawinsider.in/