Author: Arafat Ibnul Bashar
We humans, have long tried to make peace with our mortality. We have tried to find solace in death through funeral rites, being buried next to our kith and kin, being buried in our village home etc. The funeral rites and method of disposal of the body after death varies from religion to religion, culture to culture, but all are aimed at giving peace and closure to the relatives of the dead, and end a person’s life with the same dignity with which he had led his life. The Covid-19 Pandemic has left a great death count in its wake. Not only are people having a hard time in combatting this virus, the society is also fumbling in handling the effects of this virus in the social behaviors of people. The lack of knowledge and misinformation surrounding this virus has created a situation of mass panic, leaving people confused even as to the handling of common social phenomena, such as the burial of the dead. Due to the fear of contracting the virus, there have been incidents of obstruction of burial and funeral rites, throwing away of dead bodies, disposing of bodies without proper measures and more. The bitter truth is that even relatives are failing to show proper respect to the dead bodies of their kith and kin due to an acute fear of the virus.
Recently, the Bombay High Court recognized the right to a decent burial, corresponding with the dignity of the individual, as a facet of the right to life guaranteed by Article 21 of the Indian Constitution, in petitions challenging a circular that designated burial grounds and cemeteries in the Bombay for disposal of bodies of persons who died due to COVID-19. Just a month before this verdict, the Madras High Court in Suo Motu W.P. 7492 0f 2020 concerning obstruction of a burial of a doctor who died from COVID-19, asserted that Article 21 of the Constitution also entails the right to have a decent burial. In the eyes of the law, the legal personality of a person extinguishes with his death. Criminal law secures decent burial rights for all dead and the violation of their body or doing anything, which prevents in anywise a suitable burial, is considered to be a crime in almost all jurisdictions. But such laws don’t necessarily imply that the dead person, in particular, has any right, but rather imply the prohibition of the acts that offend the feelings or injure the health of the living. But the latest jurisprudential development has pointed out that the notional extension of the right to life of a person also covers a person’s burial. The fact that the right to decent burial and last rite is a facet of right to life was observed by the courts even before the Covid-19 pandemic.
“Right to dignity and fair treatment under Article 21 of the Constitution of India is not only available to a living man but also to his body after his death.”Pt. Parmanand Katara v. Union of India, Supreme Court of India
Additionally, the Madras High Court held that:
“the same human dignity if not more, with which a living is expected to be treated, should also be extended to a person who is dead and that right to accord a decent burial or cremation to the dead body of a person is to be taken to be part of the right to human dignity.”S. Sethu Raja v. The Chief Secretary
In Bangladesh, the High Court Division in Human Rights and Peace for Bangladesh v. Bangladesh held that a dead body of a human being deserves a respected burial. The bulk of the cases around the world have already established that the right to life doesn’t mean mere animal existence but the fulfillment of all those conditions that ensure a life with dignity. And that dignity is also available to the dead body of an individual. Thus, a person’s right to life can be violated even after his death by disrespecting his dead body and obstructing his burial and funeral rites.
The World Health Organization, in its March 24 interim guidance titled Infection Prevention and Control for the safe management of a dead body in the context of COVID-19, stated that there has been no evidence of persons being infected from exposure to the bodies of persons who died from COVID-19. The guidance consists of regulation for safe disposal of dead bodies and emphasizes that the dignity of the dead, their cultural and religious traditions should be respected and protected throughout. The guidance also instructs to avoid hasty disposal of a dead from COVID-19. If the disposal of the body is done following the guidance of the WHO, the dead could be assured a decent and respectable burial. Governments around the world are prescribing their own regulations and prohibitions in funeral and death rituals, in addition to those prescribed by the WHO to prevent the spread of disease. Some of these prohibitions might limit the capacity of people to carry on funeral rituals according to their tradition, religion and choice, like in both Brazil and France; authorities have urged people to limit funerals to ten attendees. In the United Kingdom, the Coronavirus Act, 2020 has permitted the local authority to disregard Section 46(3) of the Public Health (Control and Disease) Act, 1984, which precludes local authority from cremating the dead body against the wishes of deceased. But some of these restrictions have been unreasonable such as the one in Sri Lanka mandating cremation of dead bodies of COVID-19 patients or suspects even for the Muslims, who, by custom, follow the burial method, despite the fact that the WHO mentions in their guidelines that they need to cremate the persons who have died of a communicable disease is nothing but a common myth. Since the matter of the disposition of the bodies of COVID-19 victims is connected with the public’s health, safety, and welfare, it can be subjected to control by law instead of being subject entirely to the desires of individuals. But the measures must ensure proper disposal of the body abiding by both public health regulations and the culture and traditions of the dead. It is the responsibility of the State to not impose any restrictions that act as an unreasonable detriment to any of them and strikes a proper balance.
Respecting the dead body and disposing it with proper dignity, according to the tradition and religion of the dead person symbolizes the best of humanity. Even in the mythological Trojan War, Achilles returned the body of his rival, Hector, to Hector’s father King Priam and promised him a truce of twelve days to allow him to perform the funeral rites for his son. Even in modern days, international humanitarian law takes steps to ensure that even during the times of war and conflict; the dead bodies of the combatants are not disrespected out of vengeance and enmity. Article 17 of the 1949 Geneva Convention I, Article 120 of the 1949 Geneva Convention III, Article 130 of the 1949 Geneva Convention IV, Article 8 of the 1977 Additional Protocol II, Article 3 of The Cairo Declaration on Human Rights in Islam and all other relevant legal instruments, provide for the honorable burial of the combatants and prisoners of war. If the body of the dead person is to be respected even during the times of war and conflict, there could be no excuse to deprive an individual who dies in a time of peace of the same right of a respected burial and funeral rites, which the person would have otherwise been entitled to, if not for the pandemic!