Dignity to Dead?
It is a concept from earlier times that dead bodies have the right to rest and should not be disturbed in any way. Most civilizations, religions and culture have all accepted this concept and they follow it. Since there is a proper system of law and management exists in this modern world, we can see the rights of a dead person that are recognized under the laws in India.
Recently what we have witnessed is undignified treatment and disposal of the dead bodies of Covid-19 patients. This amounts to grave infraction of the citizen’s ‘right to die’ with dignity.
There are various instances like dead body being thrown in a pit for burial in Puducherry, reports of piling up of bodies in hospitals and mortuaries in the capital, non-availability of adequate burial grounds/cremation and nearly 200 dead bodies were found unclaimed, uncounted and unidentified on the bank of river Ganga, which all constitute clear and unacceptable violation of the right to die with dignity.
Ashwani Kumar (former Union Law Minister) had requested the Supreme Court to take suo moto cognizance of such actions. He said that the fundamental right to die with dignity embraces the right to decent burial or cremation.
Situation in India
Sexual offences against corpses are on the rise in India. One recent example is that of a 26-year-old woman whose corpse was gang-raped in Ghaziabad, Uttar Pradesh. Her corpse was taken out of her grave by the assaulters and was found naked twenty feet away from her grave. Another example of this is the 2006 Noida serial killings. In this, a rich businessman and his accomplice committed sexual assault on dead bodies of some women and children.
Despite all these horrific examples, India does not have a specific law in this regard. Although offenders are charged under Section 297 (trespassing on corpses) and Section 377 (Unnatural Sex) of the Indian Penal Code.
It should also be considered that there are some cases in which women are killed just before they die. In such situations, these sections don’t apply. Also, the degree of punishment given under the already present sections is very less considering the gravity of these offences. Hence, there is an urgent need for making specific laws in this regard in India.
Rights of the Dead Person under Constitution
The Preamble of the Indian Constitution guarantees to secure social justice to all citizens: –
- The Supreme Court through several decisions creatively illustrated in matters pertaining to human rights and dignity and relied heavily upon the Article 21 of the Constitution. Article 21 provides that “No person shall be deprived of his life or personal liberty except according to procedure established by Law.” The dynamic and progressive interpretation by the Supreme Court under different landmark judgements becomes the basis for dignity jurisprudence, human rights and social justice.
- Article 21 has much wider application. This fundamental right also expands to rights of the dead person i.e. giving dead persons due respect and dignity which is provided to it before the death.
- Article 25 of the Constitution of India ruled that the immediate family members of Covid-19 victims be permitted to perform the funeral rites of the deceased subject to them following certain precautionary guidelines. The dear and near ones of deceased person infected with Covid-19 should have an opportunity to have a look at remains of that person and to pay their last respect to the departed soul.
Rights of the Dead Person under Indian Penal Code
Indian Penal Code, 1860 also provides certain provisions relating to rights of the dead person: –
- Section 297 of the Indian Penal Code does not punish those acts which are mere worldly pride or pride of a particular person. A person prosecuted under this section may be punished for imprisonment, either for a term which may extend to one year, or with fine, or both. Recently, the Madras High Court, in the case of a doctor who had died due to COVID-19 infection where a large number of mob had gathered and opposed the burial of the dead body, had observed that “the scope and ambit of Article 21 includes the right to have a decent burial”, the court also enforced and highlight the Section 297 of the IPC.
- Section 404 of the Indian Penal Code deals with dishonest misappropriation of the property of a deceased person. The purpose behind Section 404, IPC, is to protect property, which specifically requires protection, where the person who can take care of it dies and the person who is expected to take care of it dies and after the death of aforesaid person, the person who has to look after the property is not present. The person prosecuted under section 404 of the IPC shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine, and if the offender is a clerk or servant of the deceased person, the term of imprisonment may extend upto 7 years.
- Explanation 1 to Section 499 provides that what may amount to defamation to impute anything to deceased person. Section 499 of the Indian Penal Code which deals with defamation, also defines that lying or slander against a dead person also contributes to the offense of defamation. In the case of Mrs. Pat Sharpe v. Dwijendra Nath Bose, the court stated that, “Even if Netaji is dead, it is defamation because the allegations made against him would have damaged his reputation if he had been alive and it should be said that the purpose of stigmatization of the people was 6o harm the feelings of his family or other close relatives”. So, in any view of the same matter the words used should be amount to defamation.
- Explanation to Section 503 provides that a threat to injure the reputation of any deceased person in whom the person threatened is interested is within this section. Section 503 of the Indian Penal Code which deals with criminal intimidation, including threatening to offend the reputation of his beloved dead person is considered as a crime. Ordinary intimidation cannot bring the act under criminal intimidation without actual intent to harm. The mere exchange of words cannot be made as criminal intimidation. Section 503 of the Indian Penal Code which deals with criminal intimidation, including threatening to offend the reputation of his beloved dead person is considered as a crime. Ordinary intimidation cannot bring the act under criminal intimidation without actual intent to harm. The mere exchange of words cannot be made as criminal intimidation.
Observations of Hon’ble Supreme Court over Rights of the Dead Person
The Hon’ble Supreme Court had an occasion to consider various facets of the Right of Life enshrined under the Article 21 of the Constitution of India. The 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 death. It being the legal position, the deceased victim after death was entitled to honourable, decent and dignified last rites/cremation to be performed by her family members in keeping with the customs and traditions followed by the family which as per the electronic media report was follower of Hindu traditions which as alleged was not allowed. It may lead to gross violation of Article 21 & 25. Our Country which is governed by Principle of ‘Rule of Law’ and guided by Spirit of Constitution. This is not at all acceptable.
In Ashray Adhikar Abhiyan vs. Union of India, the Supreme Court had upheld the right of a homeless deceased to have a decent burial as per their religious belief and the corresponding obligation of the State towards such people.
In Parmanand Katara vs. Union of India, it was held that the State must respect a dead person to be treated with dignity and unless it is required for the educational purposes or to ascertain the cause of death or post mortem ,in accordance with law, the preservation of the dead body and its disposal in accordance with human dignity.
The State acts as Parens Patriae for its citizenary, so it is the responsibility of the State to provide a dignified cremation to dead person in sync with the traditions. Right to life includes Right to dignified life even after death. A person is enshrined to get dignity throughout his life and even after life, he must get due respect. Death shall be beautiful as quoted by Oscar Wilde said that “Death must be so beautiful. To lie in the soft brown earth, with the grasses wearing 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.”