New Delhi: The Calcutta High Court has held that family members of deceased Covid-19 patients should be allowed to perform the funeral rites if they follow certain guidelines, because they have the right to a decent funeral under the Indian Constitution.
A division bench of Chief Justice Thottathil B. Radhakrishnan and Justice Arijit Banerjee issued the direction while hearing a plea against the unceremonious and undignified disposal of human remains/dead bodies of persons inflicted with Covid-19 without showing even a semblance of respect to the mortal remains. The plea also challenged the practice of not permitting the relatives of patients who passed away to pay their last respects to the mortal remains of the dead person and perform the last rites.
The court observed that the right to dignity and fair treatment under Article 21 is not only available to a living person but also to his mortal remains after his demise. Disposal of a human body, whether or not the person dies of Covid-19, whether by cremation or burial, should therefore be done with due respect and solemnness.
The court held that the mortal remains of a deceased person must be treated with care, respect and dignity and should be disposed of by burial or burning, according to the religion, in so far as the same is ascertainable, that the deceased person practised.
The court noted that by and large the Indian community always has the desire for intricate practices in the form of rituals with the participation of near relatives of a deceased, following what could be permissible under given circumstances. The restrictions that can be imposed in respect of public order, morality and health and to the other provision of Part III of the Constitution necessarily provide room for fair provision for relatives of the deceased persons to participate to the extent possible in the funeral of a deceased, subject to the respective norms.
The bench added that the traditional belief in our country is that unless the last rites are performed before the burial/cremation, the soul of the deceased shall not rest in peace. This belief is deep rooted in our country and has an emotional and sentimental aspect.
The court also issued the following guidelines in addition to the procedure laid down by the state government.
- When post mortem of the dead body is not required, the dead body shall be handed over to the immediate next of kin of the deceased i.e. the parents/surviving spouse/children, after completion of hospital formalities. The body should be secured in a body bag, the face end of which should be preferably transparent and the exterior of which will be appropriately sanitized/decontaminated so as to eliminate/minimize the risk to the people transporting the dead body.
- The people handling the dead body shall take standard precautions, e.g., surgical mask, gloves, etc. If available and possible, PPE should be used
- The vehicle carrying the dead body to the crematorium/burial ground will be suitably decontaminated.
- The staff of the crematorium/burial ground should be sensitized that Covid-19 does not pose additional risk. They will practice standard precautions.
- The face end of the body bag may be unzipped by the staff at the crematorium/burial ground to allow the relatives to see the body for one last time. At this time, religious rituals, such as reading from religious scripts, sprinkling holy water, offering grains and such other last rites that do not require touching of the body, should be allowed.
- After the cremation/burial the family members and the staff of the crematorium/burial ground should appropriately sanitize themselves.
- As a social distancing measure, large gathering at the crematorium/burial ground should be avoided.
- The persons handling the dead body shall go directly from the hospitals to the crematorium/burial ground, as the case may be, and not to anywhere else including the home of the deceased where he/she last resided.
- In case the body of a Covid-19 infected deceased is unclaimed, the same shall be cremated/buried as the case may be with due dignity, at State expense.
-India Legal Bureau