Whether the relatives & friends of Patients admitted in Hospital/Hospitals with
Covid-19 or Patients having contracted the disease whilst in Hospitals after
getting admitted for some other malady, and who subsequently passed away, can be
deprived to have a last look at or to pay last respect to the mortal remains of
the dead person and to perform the last rites?
Bidding farewell to the dead through funeral rites was one of the earliest signs
of civilization. Although funeral practices have changed with time, bereavement
is still an event. People wish peace for the dead through rituals according to
their cultural and religious beliefs; it is a way of coping with the unknown.
Social bonds are confirmed in the period of mourning through sharing and
support. It is understandable that a pandemic would disrupt these systems,
especially when the disease causing it is infectious. It is as though the roots
of society are being torn apart, for the cultural and psychological damage
caused by this unprecedented crisis is incalculable.
Article 21 of the Constitution of India states that:
No person shall be deprived of his life or personal liberty except according to
a procedure established by law.
According to Bhagwati, J., Article 21 embodies a constitutional value of
supreme importance in a democratic society. Iyer, J., has characterized
Article 21 as the procedural magna carta protective of life and liberty.
Article 21 of the Constitution of India prohibits the deprivation of the above
rights except according to a procedure established by law. Article 21 of the
Constitution of India corresponds to the Magna Carta of 1215, the Fifth
Amendment to the American Constitution, Article 40 (4) of the Constitution of
Eire 1937, and Article XXXI of the Constitution of Japan, 1946.
This right has been held to be the heart of the Constitution of India, the most
organic and progressive provision in our living Constitution, the foundation of
Article 25 of the Constitution of India deals with Right To Freedom Of Religion
And Rights Of Minority. Besides religion and conscience, there appears three
significant expressions used under Article 25 of the Constitution of India,
namely, profess, practice and propagate. Right to profess means freedom of
unhampered expression of spiritual conviction in words and action which one may
articulate or confess or acknowledge or agree or allow or own or recognize as
per one�s religion and conscience. Freedom of practice means individual�s right
to give it expression in forms of private and public worship.
Rituals, ceremonies, observances and functions are integral parts of a religion
and freedom to practice such rituals and ceremonies are included in religious
practices. The only test to determine whether a given religious customary
practice is an integral part of a religion or not would be whether such custom
is regarded by the community following the religion or not. The right to
propagate one�s religion means the right to communicate or disseminate or spread
or broadcast or proliferate or transmit or publicise one�s beliefs and faith to
other persons through congregation or public discourse or public meetings.
At National level, the subject of �Health� does not appear in many places of the
Constitution of India, there are indirect and tacit references to health of the
people and the role the State has to play in the development of health of the
people. Article 47 of Directive Principles of State Policy (hereinafter DPSP) -
states that improvement of Public Health is one of the primary duties of State.
Also, under Schedule VII powers relating to �Public Health Care� and �Burial &
Cremation Grounds� is under the State List. Therefore, the State Governments
have the discretion to formulate laws regarding protection of Public Health &
Management of Burial & Cremation Grounds. Deriving powers from the Seventh
Schedule, various State Governments passed Regulations in response to COVID-19
in furtherance to the Epidemic Diseases Act.
For example: The West Bengal Epidemic Disease, COVID 19 Regulations,
2020, The Maharashtra COVID-19 2020, The Delhi Epidemic Diseases, COVID-19
Regulations, 2020, the Odisha COVID-19 Regulations, 2020, the Uttar Pradesh
Epidemic Diseases, COVID-19 Regulations, 2020, the Bihar Epidemic Diseases,
COVID-19 Regulations, 2020, the Gujarat Epidemic Diseases, COVID- 19
Regulations, 2020, etc. Apart from these State Regulations, there are two
national legislations which are relevant for COVID-19 Pandemic. The Epidemic
Diseases Act, 1897 is one of the laws which were first enacted to tackle bubonic
plague in Mumbai in former British India.
This Act is meant for containment of epidemics by providing special powers that
are required for the implementation of containment measures to control the
spread of the disease. On April 22, 2020, the Epidemic Diseases (Amendment)
Ordinance, 2020 was promulgated. The Ordinance amends the Epidemic Diseases Act,
1897 and seeks to protect its Health Care Personnel, Clinics and other
The Second piece of legislation is Disaster Management Act, 2005 under which the
Guidelines on Management of Biological Disasters, 2008 were passed. The
2019 National Disaster Management Plan, also deals with Biological Disaster and
Health Emergency. This is the broad legal framework within which activities to
contain COVID-19 are being carried out by the Union and State Governments.
Similar Guidelines were passed by Ministry of Health & Family welfare which
specifically dealt with the management of dead bodies. But all the relevant
guidelines and legislations have their own limitations and they fail to address
the issues raised above.
By and large, whether it is for a theist or atheist, freedom of conscience and
free profession and practice of religion is protected under Clause (1) of
Article 25 of the Constitution of India.
The term Religion in that Clause need not necessarily be linked to any
particular religion as is understood as a religious denomination. It is a matter
of faith and of one�s own conscience which could trigger the profession and
practice of what may be religion in the larger sense to a particular individual.
With this concept in mind, it needs to be delineated that it is not the
religious practices of the different religious denominations which matter in
It is a matter of connectivity with the person who has died and the near
relatives may be in whatever degree of relationship. Fundamentally, human
relationship between the Parent and Child, Husband and Wife, Grandparent and
Grandchild, etc. is not based on any religious tenet. It is a matter of faith
and conscience of every individual. If such a person is to take recourse to any
practice and free profession on the foundation of freedom of conscience in terms
of Clause (1) of Article 25 of the Constitution of India, it could get abridged
only by the reciprocal covenant that such activity should be subject to public
order, morality and health and to other provisions of Part III of the
Constitution of India. This is the inbuilt mode of controlling such activities
even in terms of Clause (1) of Article 25 of the Constitution of India.
The eligibility of a person to perform the funeral rites, be it connected to
cremation or burial, may be sometimes guided by factors which may be akin to
accepted practice even in religious denominations. The varied practices among
the Hindus as a whole or different denominations of Hindus, one thing is clearly
certain; the facility to provide ritualistic offerings by way of water, flowers
or even certain grains are quite often seen as fundamentally for the
satisfaction of the person making such offer to the dead before
burial/cremation, as the case may be.
Post-Cremation rites including, receiving the mortal remains in the form of
ashes and bones which are treated as sacred to the near relatives of the
departed and further handling of those materials in accordance with faith and
belief also stands accepted in such communities (profitable reading in this
regard can be had from Garuda Purana, Vishnu Purana and other ancient Hindu
texts and scriptures).
In so far as Christians are concerned, if one were to look at different
denominations, it can be seen that there are practices, which may with slight
variations, generally provide for prayers before the dead bodies are disposed of
by burial and by offering prayers even after disposal on different dates and
times depending upon the faith, belief and practice in different Churches. A
perusal of canons would show that different ritualistic processes are delineated
for such matters.
The mention is being made only to indicate that there are different practices
available. In so far as the Muslims are concerned, whatever, be the difference
in beliefs and practices among the Hanafis, who are treated as a majority group
of Sunnis in India, on one hand, and the Shias on the other hand, one clear
thread of connectivity is the faith and belief that the disposal of human
remains is a must as well as post Kabar (Burial) rituals (Certain passages from
Al-Bahr-ur-Raiq will buttress this aspect). The family also intends to have its
own practices carried forward to the extent it relates to their faith and
It only demonstrate 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
of India 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.
It is delineable as part of human rights. The legislative purpose and intention
behind putting the Disaster Management Act, 2005 in place is to provide a piece
of legislation which could be treated as annihilative in nature. The whole
concept of Disaster Management and the regulatory provisions which can be
generated within the domain of Disaster Management Laws are to be treated,
understood and applied as shield to energize and enable better governance in the
wake of disaster by following Preventive Management, Protective Management and
Post Disaster Curative Management of all such situations.
In this spectrum of reasoning, the constitutional aspirations of the people in a
civilized society cannot be discounted except when and unless it becomes
disorderly behaviour which would infract the Public Order, Morality and Health.
Reverting to the principles emanating out of the Constitution of India, as held
by the Supreme Court in [Budhadev Karmaskar Vs State of West Bengal, AIR
2011 SC 2636], the word life in Article 21 of the Constitution of India means a
life of dignity and not just an animal life.
The transition of the concept of animal life to lead a life with dignity which
is expected for a human life necessarily postulates the freedom of the
individual to maintain for him/her and enjoy the universal concept of love and
devotion to the near and dear ones and also to suffer sorrow and do such things
which would alleviate sadness which emanates out of unfortunate events.
In maintaining just and reasonable human relationship built on human and
constitutional values, we may also bear in mind that it is among the Fundamental
Duties of citizens in terms of Article 51-A of the Constitution of India to
promote harmony and spirit of common brotherhood amongst all the people of India
transcending religious, linguistic and regional or sectional diversities to
renounce practices derogatory to the dignity of woman; to value and preserve the
rich heritage of our composite culture.
Burial and disposal of a decedent person carries some rights and duties with
himself/herself. One of them is that, if a married person dies, the custody of
the remains and burial lies with his/her spouse. [Radomer Russ-Pol
Unterstitzund G Verein Vs Posner, 176 Md. 332 (Md. 1936)].
There is no right of property in a dead body in the ordinary sense, but it is
regarded as property so far as necessary to entitle the surviving spouse or next
of kin to legal protection of their rights in respect to the body.[Lubin Vs
Sydenham Hospital, Inc., 181 Misc. 870 (N. Y. Sup. Ct. 1943)].
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. It also has an emotional
and sentimental aspect. Hence, the family members of a deceased who was infected
with Covid-19 should not be deprived of the right to perform the last rites of
the deceased, subject to them taking all necessary precautionary measures.
In terms of Article 243-G of the Constitution of India read with the 11th
Schedule and Article 243-W read with the 12th Schedule of the Constitution of
India, Public Health, Sanitation Conservancy, Burials, Burial Grounds,
Cremations, Cremation Grounds and Electric Crematoriums are matters that fall
within the domain of self-government institutions, be it a Municipality or a
Referring to the aforesaid provisions of law shows that the legislature has
imposed duties on the local self-government institutions to maintain hygiene in
the public domain and has empowered such institutions to take appropriate
measures to combat the menace of an epidemic or deadly disease. However, these
powers must be exercised by the donees of such powers responsibly and by
ensuring that the rights of the citizen which are recognized by law, are not
jeopardized or curtailed unnecessarily.
The right of the family of a Covid-19 victim to perform the last rites before
the Cremation / Burial of the deceased person is a right akin to Fundamental
Right within the meaning of Article 21 of the Constitution of India. While
exercising their power to impose restrictions on citizens in their way of life
in the wake of outbreak of an endemic like Covid-19, a fine balance must be
struck by the State and the local self-government institutions so that the
aforesaid right of a citizen to perform the obsequies of his/her near and dear
ones does not stand abridged or abrogated excepting for very compelling reasons.
It can be concluded safely that the immediate family members of Covid-19 victims
can�t be deprived to see the body for one last time and perform 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 and to
collect the ashes for last rights while complying with the constitutional
obligations under Articles 21 & 25 of the Constitution of India in so far as the
management of the rights of Covid-19 deceased persons are concerned.
Written By: Dinesh Singh Chauhan, Advocate - High Court of Judicature,
Email: [email protected]; [email protected]