This article has been written by Priyamvada Singh, pursuing LLB(H) from School of Law, Galgotias University. The article talks about the deaths during COVID-19 pandemic and the consequential dignity of the dead.

Introduction

COVID-19, alias CoronaVirus, struck the world like a train wreck. In a matter of a few months, the entire world was engulfed in this virus’ hold, and the numbers have been continuously increasing. As of today, there are 2,10,120 active cases in India, and 16,475 deceased due to the disease. The world over 4.4 Million active cases have been recorded, with 302 thousand deaths. The number continues to rise incrementally even as this article is being written. This is an emergency situation, unseen in the past 100 years. It has caused a major upheaval in what was considered a normal lifestyle and pushed us all to reconsider what is essential and what isn’t. With the upturning of the market, economy, education system, and the discovery of political fallacies, another question poses itself. How are we going to manage the dead? 

Background

In July, the division bench of Chief Justice Dipankar Datta and Justice NJ Jamadar, while hearing the PIL filed by activist K Tiroodkar through video conferencing, was informed that there were serious lapses in the disposal of dead bodies, as a result of which the crematoriums were getting crowded, causing problems to the residents in the neighbourhood. It was further submitted that the staff of these crematoriums were not provided with safety gears such as personal protection equipment (PPE) kits, masks, sanitizers etc. The Brihanmumbai Municipal Corporation (BMC), through senior counsel Anil Sakhare, however, refuted the claims and said that the civic body was following the World Health Organization (WHO) and central government’s guidelines for the safe disposal of the bodies of COVID-19 victims. In this conflict of you v/s me between the executive and the judiciary in this global pandemic, it is the general public that is paying the ultimate price: the loss of dignity- even in death.

Heavy death tolls have come into light during this outbreak. While it is tragic as any death is, the question of dignified management of the dead bodies has thrown everyone in a loop. These bodies are certainly mourned over, however, they can’t be buried or embalmed like a normal body would, as the virus has been proven to survive for quite some time in dead bodies too. The pertinent questions that arise are: 

• Who will handle the dead bodies?
• How shall the bodies be handled? What would be the protocol?
• How will the safety of the person authorised to handle the bodies be taken care of? 
• If the dead body’s last rites are performed, how is it to be done vis-a-vis their respective religion? This question is more difficult since it is advised that the bodies be cremated, however, many religions forbid it.
• Is religion to be neglected in this scenario to avoid contamination?
• How is the aforementioned going to be achieved?

These questions command equal attention as discovering the methods for the containment of the disease.

Right to dignity of the dead

The Right of the dead to have dignity concerns itself with the fact that every dead body deserves grace in its cremation. To let a dead body out to rot without proper care is not only unethical and immoral, but also poses a health risk to the others: including humans, animals, and plants. 

Article 21

Article 21 essentially the Right to Life, and within itself, it embraces many aspects of a person’s life. One of these is the Right To Reputation under Article 21. Under this Article, the reputation of the dead is protected. The harming of the reputation of a dead man’s reputation with malicious intent may attract penal charges.

Ramji Singh and Mujeeb Bhai Vs. State of U.P. & Ors

Even prior to the pandemic, the Indian constitution provided constitutional rights to cadavers, albeit in a limited sense, under Article 21- protection of life and personal liberty. In the case of Ramji Singh and Mujeeb Bhai Vs. State of U.P. & Ors (2010). The issue of the rights of the dead was addressed. In this case, the Allahabad High Court contended that a person’s Right to Life includes the right of the dead body to be treated with respect with the same respect that he would have deserved if he were alive. The treatment of the dead body should be based on the culture and religion of the dead. It is imperative for the State to treat the corpse with dignity, and must only resort to postmortem if it is a necessity. This necessity may arise out of various reasons: to ascertain who was involved in a crime, or to find out the cause of death. However, post the investigation- the disposal should be dignified.

P. Rathinam v. Union of India

The ambit of Article 21 was widened to include the dignity of a person in the case of P. Rathinam v. Union of India. The case proved to be a landmark case in the judicial trends of the nation. In the case, the Apex Court emphasized the right to life. It said that a meaningful life is included in the meaning of Article 21 and is not merely confined to an animal existence. Further, this right to dignity was expanded to a dead person. 

Section 499 of IPC

Explanation 01 to Section 499 of The Indian Penal Code states that it may amount to defamation to impute anything to a deceased person if the imputation would harm the reputation of that person if he is alive, and is intended to be hurtful to the feelings of his family or other near relatives.

The Indian Succession Act, 1925 

The Indian Succession Act, 1925 comes into motion after a person has died. According to this Act, every person gets to decide how his body shall be treated after his death This Act provides the mental entity of a person to live on well after his death, by way of legacy. Former Prime Minister Jawaharlal Nehru famously wanted his ashes to be strewn on Indian fields, so he could be a part of the Indian soil after he was dead. His last wishes were complied with. 

Transplantation of Human Organs Act, 1994

Transplantation of Human Organs Act, 1994 protects every person against getting their organs harvested without consent, posthumously. According to this Act, a consent form must be signed in order to gain a person’s consent for organ harvesting. No person shall have their body mutilated or harvested in case of their death. Initially done to prevent illegal organ harvesting and to curb the rampant market associated with it, this Act requires multiple authorizations in each case to make the case tamper-proof. By way of this Act, the legislators of India have provided the dead body with its own rights.

How the rights during the COVID-19 were affected?

A number of cases in the past few months came to light where, due to ignorance and fear amongst the public, violence towards dead bodies were witnessed. From the refusal of burial to violence during these burials and cremations- the need to address the issue became more and more apparent by each day. Thus, to control the situation and prevent such incidents, reforms and suggestions have been put forward by different sources.

Reforms and suggestions

Without required planning and their execution, the management of the risk of CoronaVirus is unimaginable. Thus, to address this concern, The International Committee of the Red Cross (ICRC)- India issued a list of protocols to be maintained to ensure the safety of frontline healthcare workers as they carried out their duties. The ICRC has always been on the forefront in the management of conditions during emergencies. Although not mandatory and the unfollowing of these is not a penal offence, the Committee strongly urges the incorporation of these protocols while on work, so there are positive responses on the management front.

The ICRC suggests that: 

• The frontline workers dealing with COVID-19 cadavers must be trained, and qualified enough to handle the same.
• They need to be sensitive towards religious and emotional sensitivities and address them accordingly.
• Personal Protective Equipment (PPE) must be provided in ample quantities to these workers and they should be trained in donning and its subsequent doffing as both of them should be equally handled with care to limit exposure.
• Workers must sanitise their equipment, and responsibly dispose of their discards after each use.
• Each cadaver and its recovery, transportation, examination, and the last rites performed be documented for future reference. It is also advisable that the local authority’s guidance on the addressal of these dead bodies be made available to each frontline healthcare worker.

Furthermore, the ICRC suggests that a few practices be done away with. These are as follows:

• The frontline workers must not eat, drink, or touch their eyes, nose, or mouth while handling the casualties. By limiting these activities, the chances of the infection getting spread are reduced by a significant amount.
• Multitasking while the handling of a body must be condemned. These activities include handling multiple corpses at once.
• Must not allow the relatives to touch, kiss, or come dangerously close to the body.
• The complete autopsy of dead bodies, which are non-essential in nature, should be suspended. The autopsy of dead bodies are invasive in nature, and avoiding them when they are not essential is a necessary move.

The ICRC is also providing technical support to forensic experts in India, along with the distribution of body bags, masks, amongst others.

Apart from this, on the 15th of March, 2020- The Ministry of Health & Family Welfare issued guidelines on dead body management.

Conclusion

As per the judicial trends observed over the past few years, it can be safely concluded that Article 21 includes within itself the Right of the dignity of the dead. Privacy after death is also considered to be a secondary part of the privacy of life. Once a person is dead, his rights dissolve with him, except a few that linger on. India is a welfare state, which means that the well being of its citizens is the paramount purpose of the nation. The carrying out of this duty becomes even more imperative as this is also a secular country. No religion takes a forward role here, according to the Constitution. As an established welfare State and also the biggest democracy in the world, it is the duty of this country to set an example regarding the rights of the people residing here.

This provision is not just humanitarian, but also ethical on various levels. The necessity of it becomes even more imperative because it is important to send the right kind of message into society. This means that people do understand that a man has a right to privacy in his lifetime, but it is just as important to respect his privacy and space after he is dead. It is unethical to use his information or to disrespect him after he is dead. And the proper last rites of the body comes within the purview of the same. This right is indispensable and relates to the reputation of the deceased. For the dead body to be disrespected has a directly proportional relationship with the character and personal background of the person who has passed away. Whether or not a person is alive should not affect his reputation, and the duty of the State to maintain it.

References

1. https://www.readersdigest.in/health-wellness/story-before-coronavirus-pandemics-that-shook-the-world-125306 
2. http://legalperspectives.blogspot.com/2010/01/do-dead-people-have-rights.html 
3. https://www.mohfw.gov.in/pdf/1584423700568_COVID19GuidelinesonDeadbodymanagement.pdf 
4. https://indiankanoon.org/doc/361011/ 
5. https://uniteforreprorights.org/resources/pt-parmanand-katara-v-union-india/ 
6. https://www.deccanherald.com/national/north-and-central/ex-delhi-mla-ensures-dignity-in-death-for-covid-19-patients-862760.html
7. https://indiankanoon.org/doc/498126/ 
8. https://www.thehindu.com/news/cities/Hyderabad/no-dignity-in-death-for-covid-19-warrior/article32006940.ece 
9. https://www.thehindu.com/news/cities/Hyderabad/covid-victims-denied-dignity-in-death/article31949140.ece 
10. https://www.hindustantimes.com/mumbai-news/ensure-dignity-of-dead-and-alive-is-maintained-while-cremating-covid-patients-bombay-hc/story-thv7gLErMiFgLQrFDPt8aO.html 

---

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: