Professor Dr. K. L. Bhatia
Right to life, liberty and dignity of the dead person on account of COVID-19 should be perceived from the prism of humane law. Dead person’s life matters to have respectful cremation and burial inasmuch as the human lives matter to live in peace, tranquility and harmony in pursuit of happiness. Novel Corona virus COVID-19 has brought unprecedented miseries to the life and limb of the human beings. It has brought unnatural and unprecedented deaths. What is the legal status in the language and lexis of right to life, liberty and dignity of a dead person?
In jurisprudential perception a human being ceases to be a person, in law as in fact, at death. However, modern survival techniques and the transplanting of living organs, has opened up possibilities with profound moral, social and legal implications. Although legal interest in a human being as a person ceases at his death, it continues in some other respects, e.g., the law of testamentary succession by which the wishes of the deceased as to the disposal of his property, moveable and immoveable, are given effect; the law ensures a decent and respectable cremation and burial of his body; the law of libel protects his reputation, but only when an attack upon it affects living persons.
Death caused by COVID-19 and constitutional protection under the lexicon of Article 21 of the Constitution of India has to be revisited: “No person shall be deprived of his right to life and personal liberty except according to the procedure established by law”. By the term life something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body, or the destruction of the body through which the soul communicates with the other world. Therefore, right to life, liberty and dignity may be construed, in the new millenniums law glossary, to include right not to be driven out of funeral, or cremation or burial of the dead person.
Now, looking to various annoying and unpleasant incidents that hurt deceased person’s life, liberty and dignity, one stirs. For instance, denial of respectable cremation and burial, or stone pelting by mob, or delay in decent cremation and burial, or throwing dead bodies in pit, ditch, trench and dugout, etc. Do such disgraceable incidents amount to insult to deceased and the relatives or the members of the bereaved family?
In this context we may recall the words of the then Chief Justice of India Shri Dipak Misra who expressed his opinion in Common Cause V. Union of India, a case on an ode to individual autonomy, albeit in different context, but certainly relevant in the present milieu: “In a certain context, it can be said, life sans dignity is an unacceptable defeat and life that meets death with dignity is a value to be aspired for and a moment for celebration”.
The COVID-19 pandemic is raging across the world and has halted normal life. Social distancing and wearing facemasks in public places are the toolkits for survival. There is a saying: “Usually we honor the dead. Now it’s like a war and collects the victims”. The pandemic since March 2020 has unfolded heart-wrenching realities in India. For example, the National Human Rights Commission was compelled to write suo motu to the UP Government to explain the disgrace caused to the dignity of the dead persons after media report showed bodies of road accident victims being carried along with injured migrant laborers in the same vehicle. Besides, the Delhi High Court while taking suo motu cognizance over the dilapidated state of the crematoriums as well as piling of the bodies at the LNJP hospital Delhi. The case related to the reports regarding COVID-19 mortuary of the LNJP Hospital, Delhi where there were 108 bodies; all 80 storage racks were full and there were 28 bodies on the floor piled on top of each other, and such heart touching incident amounted to the violation of the right of the dead and as such observed: “We, as citizens, are pained at the aforesaid state of affairs and as Judges find the situation as reported, and if true, to be highly dissatisfactory and violative of the rights of the dead”.
The stigmatization attached to those found positive for COVID-19 while abhorrent to those living has also created difficulties for the dead. The body of 69 years old doctor, who died of COVID-19 complications on Wednesday morning, was laid to rest on Thursday. The delay in burial of the dead doctor was caused after localities in Shillong disallowed his last rites for fear of contagion. It may be mentioned that there is thus far no scientific analysis that states that infection may be caused to the living from the cremation and/or burial of such deceased. If there were/are no fear-psychosis to the living persons on the cremation and burial of persons dying on account of highly infectious diseases like dreaded Spanish Flu pandemic of 1918 which like COVID-19 had also ravaged the world (the disease is believed to have been brought by the soldiers returning from World War I conflicts), influenza, tuberculoses, plague, swine flu, etc., then why now! Isn’t it vocative and dilative to the grace and dignity of the dead person? What is State responsibility in such cases? Could P.I.L. be a pill for such an impulsive ill? A question to ponder over by citizens as well as the Nation-State!
A pathetic and dismal illustration is the death of renowned spiritual singer by COVID-19 in Punjab whose dead body could not be cremated for hours as residents of his native town surrounded the cremation ground and stalled the funeral because they believed it would spread the virus. What a murky and bleak picturesque of the system?
Another example is death of a doctor due to heart attack on account of COVID-19 and the large number of people opposed the burial of the body. The Madras High Court while taking a suo motu notice observed: “It prima facie appears that as a consequence of the above alleged acts a person, who practiced a noble profession as a doctor and breathed his last, has been deprived of his right, to have a decent burial, in a cemetery earmarked for that purpose”.
Right to life includes right to dignity. Right to dignity is not only available to a living man but also to his body after his death was articulated by the Supreme Court in a pro bono public petition in Parmanand Katara V. Union of India. Thus, the Bombay High Court in Pradeep Gandhi v. State of Maharashtra has unequivocally expressed that a decent funeral, cremation and burial of a dead in COVID-19 is the sustenance of the right to dignity of the deceased. Therefore, the Bombay High Court has recently observed thus: “Right to a decent burial or cremation, commensurate with the dignity of the individual, is recognized as a facet of the right to life guaranteed by Article 21 of the Constitution. There is, thus, no reason as to why an individual who dies during this period of crisis because of suspected/confirmed COVID-19 infection would not be entitled to the facilities he/she would have otherwise been entitled to but for the crisis”. The Court in support of its observation quoted Oscar Wilde: “Death must be so beautiful. To lie in the soft brown earth with the grasses waving above one’s head, and listen to silence; To have no yesterday, and no tomorrow; To forget time, to forget life, (just) to be at peace.” This, in an ocean within a tear, is the soul of right to life and dignity of the dead person within the prism of humane law — a new jurisprudential perception. Humane law comprises the totality of legal and constitutional provisions which ensure for the human person, living and dead, respect and fulfillment. Right to die with respectful cremation and burial is the fulfillment of right to dignity inasmuch as the right to live and let live with respect and fulfillment. Therefore, death thou shall be so beautiful with no yesterday and no tomorrow, but only to be at peace.
(The author is former Head and Dean Faculty of Law and Founder Director The Law School, University of Jammu Professor National Law University Jodhpur
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