This article has been written by Adarsh Vasudeva, pursuing the Certificate Course in Advanced Civil Litigation from LawSikho.

Introduction 

“The right to life, fair treatment and dignity, extend not only to a living person but also to his dead body”

We have battled for our rights our whole lives and will most likely continue to do so in the future, but we seldom consider the potential of losing those rights when we die. Will they accompany us to our grave or they will die with our death? You will learn about the rights of the deceased after reading this article. Various rights, precedents, and rules exist in this regard. 

When news of hundreds of dead bodies floating in the sacred river Ganga surfaced, the whole human race was scared. We want to live a respectable life, but do we also desire a dignified death? The incident was so intense that even the National Human Rights Commission in its advisory for “Upholding the Dignity and Protecting the Rights of the Dead” dated 14th May 2021 has clearly stated that legal position related to the right to life, fair treatment and dignity, derived from the Article 21 of the Constitution of India, extends not only to the living persons but also to their dead bodies and asked all governments to follow the recommendations within 4 months. 

The discovery of hundreds of Covid-19 bodies floating or dumped in Indian rivers paints a grim picture for us, and it also suggests that people and governments are unaware of the rights of the dead. As a result, this article serves as a wake-up call to our country’s institutions and citizens, informing them that even the dead have certain rights, including the right to a dignified death.

Laws related to the Rights of deceased

1. Section 404 of IPC (Dishonest misappropriation of property possessed by deceased person at the time of his death):

According to this section, the offender must have a dishonest purpose and misappropriate or convert to his own use property that belonged to a deceased person at the time of his death. He must also know that such property was in the dead person’s possession at the time of his death and has not come into the custody of any person lawfully entitled to such possession since then when he misappropriated or converted it to his own use. When the criminal was the deceased’s clerk or servant at the time of his death, the section provides for a more severe sentence.

• Section 499 of IPC (Defamation): 

Defamation is defined as any person who with his spoken or written words, signs or visible gestures makes or publishes any imputation concerning any other person with an intention to harm the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person. The person making the imputation should know or have cause to suspect that the imputation would damage the individual’s reputation. 

Explanation No.1- Scope of Section 499 of IPC covers defamation of deceased person as well and creating or publishing any imputation on any deceased person which would harm the reputation of that person if living, and has the intention to hurt the feelings of his family or other near relatives may amount to defamation.

Actio personalis moritur cum persona the Latin expression which means “a personal right of action dies with the person” is not substantive enough in the matter concerning defamation of a deceased person as defamation can legitimately give rise to criminal prosecution for the offence of defamation against a deceased person.

Explanation – It was added to Section 499 IPC by assuming that any person can get triggered to commit offences if a deceased member of his family or any deceased close relative is defamed, which would further cause a breach of the peace as well.

Also, in Pat Sharpe vs Dwijendra Nath Bose, 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, thus in any view of the matter the words used do amount to defamation.”

• Section 503 of IPC (Criminal Intimidation):

This section deals with Criminal Intimidation which states that if any person threatens another with injury to his person, property or reputation, and the other person is forced to do or omit anything he is not legally compelled to do or omit, that person is guilty of criminal intimidation. The scope of this section also covers the threat to injure the reputation of any deceased person in whom the person threatened is interested.

• Section 297 of IPC (Trespassing a burial place):

Trespassing on burial grounds, for example, with a guilty mentality is punishable under this law. According to the provision, anybody who commits trespass in a place of worship or a site of sepulture, or any other area set apart for the fulfilment of funeral rituals or for the deposit of the remains of deceased people, or who provides any indignity to any human dead corpse, or causes a disturbance to any persons who have gathered for the purpose of performing funeral ceremonies, either with the intent of wounding the feelings of any person, or with the knowledge that the feelings of any person are likely to be wounded, or that the religion of any person is likely to be insulted, shall be punished with simple omission.

• Transplantation of Human Organs and Tissues Act, 1994 (THOTA)

The THOTA regulates the removal, storage, and transplantation of human organs and tissues for therapeutic purposes, with the objective of preventing commercial dealings in human organs and tissues as well as matters connected therewith or incidental thereto. THOTA ensures that a deceased person’s human organs, tissue, or both are protected and preserved from being taken without his or her agreement or the approval of close relatives.

International framework ensuring the dignity of the dead

1. Article 16 of the Geneva Convention 1949 provides for the steps to be taken by each party in armed conflict to protect the dead people from ill-treatments.
2. Article 3(a) of the 1990 Cairo-Declaration on Human Rights in Islam prohibits the mutilation of dead bodies in the event of force and armed conflict.
3. UN Commission on Human Rights in a resolution adopted in 2005 emphasised the importance of dignified handling of human remains, including their proper care and disposal, as well as consideration for the concerns of families.
4. The UN’s Inter-Agency Standing Committee’s Operational Guidelines on Human Rights and Natural Disasters Recommend that suitable efforts be made to “encourage the repatriation of remains to relatives.” Measures should be in place to enable the recovery of human remains for future identification and, if necessary, reburial.
5. International humanitarian law [Article 130(1) of the Fourth Geneva Convention] provides that it is the duty of States to see that ‘graves are respected, properly maintained, and marked in such a way that they can always be recognized’.

Burial rights and COVID-19

During the waves of COVID 19, while several dead bodies were discovered dumped in the river, many others were discovered buried in the sand with no means of cremation. Concerns have developed over the handling of the deceased during the epidemic, with improvised crematoriums, pyres overflowing with bodies, and corpses floating in waterways. The manner in which we offer death to these people raises major concerns regarding the burial rights that were meant to be granted to them.

Body disposal comprises proper burial facilities, the right to be buried with dignity, and the right not to be pulled from the grave for any cause other than those listed in the law for any crime investigation or for the welfare of society. These were seriously infringed amid Covid-19. Corpses, it is believed, have the right to lay undisturbed and unmolested. This involves protecting the bodies from damage or contempt. Even in the Christian community’s tomb, an inscription such as RIP (Requiescat in Peace), which means Rest in Peace, may be seen.

If our system is required to fulfil the desires of the deceased by carrying out his will, the same system is also required to provide appropriate directions for the preservation and disposal of the dead bodies, and for that purpose, to give an expanded meaning of the term “person” under Article 21 of the Constitution to include dead bodies of persons who were human beings in a resuscitation.

The National Human Rights Commission issued the notifications after observing that public authorities had failed to take concerted measures to educate the public and prevent the immersion of half-burned or unburned dead remains in the Ganga. 

NHRC recommendations

The NHRC’s ruling, which included 11 important recommendations, was prompted when it received a complaint based on multiple media stories expressing concerns that, deceased corpses which were found floating in our holy Ganga River, belonged to Covid victims. The disposal of deceased bodies in this manner may have a significant impact on all those people who rely on the holy river for their daily activities, according to the complaint.

The commission’s first significant recommendation is to establish special law to safeguard the rights of the deceased, based on its understanding that the right to life, fair treatment, and dignity derived from Article 21 of the constitution extends not just to living people but also to their dead bodies. Given the enormous number of deaths during the second wave of the COVID-19 epidemic, as well as the difficulties in managing dead corpses, the commission issued the advice for maintaining dignity and safeguarding the rights of the deceased. The recommendations included:

• Making immediate interim measures to minimise unnecessary delays in cremations was one of the proposals. 
• It also emphasised the importance of sensitising cremation/burial ground workers about proper dead corpse handling, as well as the necessity to provide them with the required safety equipment and facilities.
• The NHRC recommended that in cases where family members or relatives are unable to perform last rites because they are infected or are unwilling due to fear of becoming infected, or where repatriation of the body to the family is not possible, the state/local administration perform the last rites of the body, taking religious/cultural factors into account. 
• The use of electric crematoriums is recommended by the suggestion in order to prevent the health risks associated with the large-scale emission of smoke from burning pyres.
• The panel also advised the authorities to verify that no dead corpses were stacking up during transit or anywhere else, and that mass burial or cremation should not be permitted to take place since it violates the dead’s right to dignity. 
• Prices for hearse or ambulance services should be controlled so that people are not exploited and do not experience difficulties in transporting the deceased.

Judicial contribution in protecting burial rights of the dead

The Right to Existence, as guaranteed by Article 21 of the Indian Constitution, encompasses several facets of a person’s life, including the Right to Dignity. This privilege has been extended to dead people by numerous Supreme Court and High Court judgements.Major Supreme Court cases and their judgements

1. The Supreme Court of India in Ashray Adhikar Abhiyan v. Union of India held that the dignity of the deceased must be maintained and respected and homeless deceased persons have the right of receiving a decent cremation according to the religious customs to which one belongs. The court also established that it is the duty of the state to ensure that decent cremation is served to the person.
2. The right of dignity and right enshrined in Article 21 is extended to cover the scope of dead people also and the right of life means a meaningful life and not merely animal existence.
3. In the case of Pt. Parmanand Katara Vs. Union of India, it was upheld by the Supreme court that “the word and expression ‘person’ in article 21, would include a dead person in a limited sense and that his rights to his life which includes his right to live with human dignity, to have an extended meaning to treat his dead body with respect and the State must respect a dead person by allowing the body of that dead person to be treated with dignity”.

Major High Court cases and their judgements 

1. The right to life includes the right for a deceased person’s corpse to be treated with the same respect as if he were alive. The state must treat the dead with dignity and only use post-mortem if absolutely necessary.
2. On July 27, 2020, the Karnataka High Court ruled that it is the responsibility of the state government and civic body Bruhat Bengaluru Mahanagara Palike (BBMP) to issue guidelines with the goal of ensuring people a dignified death and directed the Karnataka State Government to ensure that dead bodies are properly buried or cremated.
3. Article 21 of the Constitution guarantees a person’s right to dignity and fair treatment not just while they are alive, but also after they have died. Whether a person dies of Covid-19 or not, disposing of a human body, whether by cremation or burial, should be done with care and solemnity.

Conclusion

It’s a matter of concern that we as humans and citizens of this country are not able to provide oxygen to the living and cremation to the dead. National policy subject to the number of deaths in a state should be framed in order to provide a dignified death to people, in states where a greater number of people are dying, the policy should concentrate more resources and vice-versa. It’s the responsibility of the state, hospital administration and citizens to uphold the dignity of the dead. States should ensure proper disposal of dead bodies and also maintain burial grounds; the medical fraternity should ensure proper handling of dead bodies and as citizens, we have the duty to inform the nearest police station/ambulance/administration about any incident of a death. Providing respect to the dead is the least we can do for humanity.

References

1. https://thewire.in/rights/nhrc-covid-19-bodies-ganga-rights-of-the-dead.
2. https://www.stimmel-law.com/en/articles/rights-and-obligations-human-remains-and-burial.
3. https://timesofindia.indiatimes.com/city/goa/do-the-dead-have-rights/articleshow/47409240.cms.
4. https://thelawbrigade.com/wp-content/uploads/2019/07/Anagha-Nair.pdf.
5. https://thewire.in/rights/nhrc-covid-19-bodies-ganga-rights-of-the-dead.
6. https://www.indiatoday.in/law/story/handling-of-covid-victims-debate-what-do-indian-laws-say-1810291-2021-06-03.

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