Rights of The Dead and The COVID-19 Pandemic
Written by Zikra Mansoor
Second-Year Student at Faculty of Law, Aligarh Muslim University
Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.
"Death must be so beautiful. To lie in the soft brown earth, with the grass waving above one's head, and listen to silence. To have no yesterday, and no tomorrow. To forget time, to forget life, to be at peace."
Oscar Wilde
These lines were quoted by the Bombay High court [1] while upholding the right to the decent burial of the dead bodies. From this, we can understand the immense value of the right and dignity of the deceased. The requirement that the dead should be treated with respect and dignity existed as a fundamental human value long before there were any attempts to identify and codify international or domestic laws relating to the rights of the dead. The recent incidents of floating dead bodies, and bodies left unattended for days, paint an indelible picture and impose a big question upon the state in fulfilling its duty of handling the dead. It is surely the denial of the basic human rights of the dead. The Union Home Ministry has revealed that nearly 2,000 bodies have been retrieved from the Ganga by various district administrations in Uttar Pradesh and Bihar in the last one week or so [2]. Also, around half a dozen bodies have been found floating in a river in Madhya Pradesh’s Panna district and it triggered panic amongst villagers. Dead bodies have the rights to dignified treatment.
The dignity of the deceased also has a place in the eyes of law.
Dignity of The Dead and The Indian Constitution
It is a settled legal position that the right to life, fair treatment, and dignity derive from Article 21 of the Indian Constitution. And this right extends not only to a living person but also to the dead bodies. Our Constitution puts a duty upon the state to preserve the dignity of the dead and alive equally and protects this right of individuals under the umbrella of Article 21. Article 21 remains the most widely interpreted article of the Indian Constitution and it has been interpreted to respect not only the dignity of those who are alive but also of those who have died by providing dignified treatment of the dead body. In the case of Parmanand Katara v Union of India [3], it was held that the right to human dignity extends to the dead person and that the state must respect a dead person by allowing the body of the dead to be treated with dignity.
But during these tough times of Pandemic, we have witnessed the state being completely negligent about the situations of the dead bodies. Time and again we have heard that the locals inform the authorities about the dead bodies but they are always late to take action. Undoubtedly this pandemic has brought the true picture about the loopholes in our system.
Again, in Ashray Adhikar Abhiyan v Union of India [4], it was held that it is the obligation of the state to have a decent burial of the deceased as per their religious beliefs. As a member of society, even the unidentified dead bodies have the right to dignified burial, and the duty for the same lies with the State. Therefore we can say that the right to decent burial is protected under Article 21 of the Indian Constitution and the terrifying stances of dead bodies floating in rivers is against basic tenets of dignity.
International Law Relating to Dignity of The Dead
Human dignity lies at the core of all International Human Rights laws. It is a well-accepted global thought that the rights of the dead should be respected with regard to performing last rites. Article 16 of the Geneva Convention of 1948 reads, “The wounded and sick, as well as the infirm, and expectant mothers, shall be the object of particular protection and respect. As far as military considerations allow, each Party to the conflict shall facilitate the steps taken to search for the killed and wounded, to assist the shipwrecked and other persons exposed to grave danger, and to protect them against pillage and ill-treatment [5].”
Article 16 of the Geneva Convention talks about respecting the dead and upholds the basic human values.
These human values are not just limited to wartime but should also be extended to peacetime. While international law addresses the treatment of the dead and next of kin in armed conflict, the obligations on states in respect of persons who died outside the context of an armed conflict have received less attention. From the value given to dead bodies with regard to last rites and dignified treatment even during wartime, we can infer how important it is to respect the dignity of those who are dead.
The essence of human rights lies in respecting the dignity of those dead and alive equally.
COVID Dead Bodies and The Risk of Spreading Disease
As we talk about the right to a decent burial during covid times, we must necessarily discuss the risks involved in performing the last rites of people who succumb to covid. The Ministry of Health and Family Welfare (MoHFW) stated that since the transmission of COVID-19 happens through droplets, there is unlikely to be an increased risk of COVID infection from a dead body to health workers or family members who follow standard precautions while handling the body. Only the lungs of dead COVID-19 patients, if handled improperly during an autopsy, can be infectious. It is a well-established fact that it is only the direct, indirect, or close contact with the infected person through infected secretions that leads to transmission. The MoHFW issued guidelines for handling of dead bodies of covid patients; even after issuing the guidelines that there's no risk of spread of infection yet cases of obstructions in performing last rites were reported. These guidelines [6] are as follows:
Standard precautions to be followed by health care workers while handling dead bodies of COVID victims.
Training in infection and prevention control practices.
Removal of the body from the isolation room or area.
Environmental cleaning and disinfection and how to handle it.
Handling of dead bodies in mortuaries.
Transportation
At the crematorium/burial ground.
Guidelines mentioned that rituals such as reading from religious scripts, sprinkling holy water and any other last rites that do not require touching of the body can be allowed.
Bathing, kissing, hugging, etc of the dead body should not be allowed and family members should perform hand hygiene after cremation [7]."
Furthermore, the World Health Organization (WHO) in its interim guidance on infection prevention and control for the safe management of a dead body in the context of COVID-19 dated 4th September 2020 also stated: “The dignity of the dead, their cultural and religious traditions and their families should be respected and protected [8]."
All measures should respect the dignity of the dead including avoiding hasty disposal of the body of the person who has died of COVID-19 [9]. So from this, we can conclude that there is no risk in performing the last rites of people who succumb to COVID if all protocols are followed. However, we have witnessed that many families are reluctant to perform last rites of the covid dead bodies of their family members even after the aforementioned clarifications by the ministry as well as WHO.
Back during the first wave of COVID-19 infections, a petition was filed in Bombay High Court by people from Bandra stating that the grounds near to their house was being used for burial of COVID-19 patients.
The court dismissed the petition stating that it is the right of the deceased to be given a decent burial according to his religious beliefs and called the petition to be misconceived and misdirected. The court upheld the right to decent burial as an integral part of the right to life [10]. The seriousness of the court about the rights of the dead was evident when the court was ready to even impose exemplary costs on the petitioners but let it go just thinking that it might have been filed under panic. This judgment of the Bombay High Court is very much sufficient to express the sensitivity of the issue of dignified treatment to the dead.
NGOs, individuals, and various communities have also come forward to grant the deceased the dignity which they deserve. Many NGOs and communities have taken the initiative of burying the covid dead bodies of people whose family members were not ready to perform their last rites. Even after many efforts by NGOs, various communities, and also from the honorable courts we hear cases of thousands of dead bodies floating in rivers and this is when the liability of the state comes into question. The volunteers are doing their part, guidelines being issued by the ministry and the WHO. But still, we hear numerous cases of ill-treatment being accorded to dead bodies which raise serious questions over the government’s duty to safeguard the rights of the dead people.
The dignity of the dead, their cultural and religious traditions, and their families should be always respected and protected. Among all the threats, COVID-19 Pandemic has revealed the fragility of human beings under enforced isolation and, for the first time, the painful deprivation of families to accompany their loved ones to the last farewell. In these cases, it is the duty of the state to ensure a dignified burial of the deceased. We all are in this together but somehow the state is failing to do its obligations. Justice is the sum total of all moral duty, let's not deny the moral duty towards the dead which also has a Constitutional sanction.
[1] Pradeep Gandhy And ors. v state of Maharashtra And Another 2020 SCC onlin Bom 662, decided on 22-05-2020
[2] OVER 2000 BODIES FOUND IN GANGA RIVER,ASIAN AGE ( 15 May , 2021,8:09am) https://www.asianage.com/india/all-india/150521/over-2000-bodies-found-in-ganga-river.html
[3] (1989) 4 SCC 286.
[4] (2002) 2 SCC 27.
[5] ARTICLE 16 GENEVA CONVENTION TREATIES,STATE PARTIES AND COMMENTARIES,https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/ART/380-600020?OpenDocument#:~:text=Historical%20Treaties%20and%20Documents&text=As%20far%20as%20military%20considerations,against%20pillage%20and%20ill%2Dtreatment.
[6] COVID-19: Guidelines on Dead Body Management of MOHFW
https://www.dailyexcelsior.com/covid-19-guidelines-on-dead-body-management-of-mohfw/
[7] BARKHA MATHUR, FUNERALS AMD LAST RITES IN THE TIME OF CORONAVIRUS -DO COVID CORPSES POSES RISK? ALL YOU NEED TO KNOW, NDTV/SWACHHINDIA(7May,202011:47AM)https://swachhindia.ndtv.com/funerals-and-last-rites-in-the-time-of-coronavirus-do-covid-19-infected-corpses-pose-risk-all-you-need-to-know-44429/amp/
[8] COVID-19 GUIDELINES ON DEAD BODY MANAGEMENT OF MOHFW(11May 2021) https://www.dailyexcelsior.com/covid-19-guidelines-on-dead-body-management-of-mohfw
[9] COVID-19: GUIDELINES ON DEAD BODY MANAGEMENT OF MOHFW (11May 2021) https://www.dailyexcelsior.com/covid-19-guidelines-on-dead-body-management-of-mohfw
[10] Pradeep Gandhy And Others v. State Of Maharashtra And Another 2020 SCC OnLine Bom 662 , decided on 22-05- 2020
Bibliography
Barkha Mathur, funerals and last rites in the time of coronavirus do covid 19 infected corpses pose risk-all you need to know, NDTV.com May 07, 2020 11:47AM https://swachhindia.ndtv.com/funerals-and-last-rites-in-the-time-of-coronavirus-do-covid-19-infected-corpses-pose-risk-all-you-need-to-know-44429/amp
Over 2000 bodies found in Ganga river ,TheAsianAge,May 15, 2021, 8:09am https://www.google.com/url?q=https://www.asianage.com/amp/india/all-india/150521/over-2000-bodies-found-in-ganga-river.html&usg=AOvVaw2RFsvlNbl8lO3O6Dl1JJn5
COVID-19: Guidelines on Dead Body Management of MOHFW ,Daily Excelsior, May 11, 2021. https://www.dailyexcelsior.com/covid-19-guidelines-on-dead-body-management-of-mohfw