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The Dilemma Of Death And Burial: A Covid-19 Story

The onset of covid-19 laid various challenge in front of various sectors and affected the very livelihood of common people and as soon as there was relief from the 1st wave of contagious virus, without warning 2nd wave ensued and brought more horrors to already damaged population of India. The floating dead bodies in Ganga raised another serious question regarding the Rights of a person after his/her death. The stigma associated with the patients who as fallen victim to this highly contagious virus that has disrupted every sector of life became so severe that health workers who were on the frontline to tackle this virus were also not spared from the same.

On 31 December 2019, it was reported by China that a cluster of pneumonia cases has been found in Wuhan, Hubei province. Little did anyone know that this was the beginning of the unprecedented crisis that will spread all over the world and endanger the lives of many populations and pose a new challenge to not only health sector but to the very basic functioning of economy and administration?

This virus was later named as SARS-CoV-2 while the disease was called as covid- 19. It has been made clear by now that the virus is highly contagious and anyone in contact with the patient is vulnerable to contact the virus. But another question that came into forefront was that if the dead body of a patient can spread the virus.

This issue came to limelight when Dr Simon, a neurosurgeon at New Hope Hospital in Chennai died, and his burial attracted criticism and mass opposition as result of the popular belief that his burial will contribute to the further spread of the virus. Later madras high court took suo motu cognisance of the same and stated that right to decent burial falls under article 21 and the court also "issued notice in public interest to state of the Tamil Nadu" and while doing so the court asked people to be aware of the guidelines issued by home ministry to tackle the stigma attached to covid-19 patients.

This issue brought light on a new topic 'an individual's right to decent burial', humans are born with several rights, human rights and legal rights being one of those, the question is what of these rights after the death of the person. India lacks any specific legislation which acknowledges the rights of a dead. But there have been some judicial precedents where the right to burial or right to cremation has been considered as a right under Article 21 by Indian judiciary.

There also have been various international institutions and organisations which have also considered it as legitimate right. The grim visuals of carcasses floating on the bank of river Ganga catapulted the situation and the NHRC1 had to intervene to protect the rights of dead.

The above mentioned horrors that covid-19 has brought forward raises new issues regarding the administration and management of dead bodies and the right to dignity of a dead person. This project will focus on 'right to burial' in the backdrop of covid-19, the socio-legal aspect of the same and the various national and international laws in the context of 'right to decent burial' of a dead person.

Context
Sir John William Salmond emphasised on three points through which the fears or anxieties of living men goes beyond their death and those are- his estate, his reputation and his dead body.2 Although the body of a dead men is not anyone's property but its decent burial or cremation for that matter are ensured by law. International humanitarian law lays down duties and obligation regarding the treatment of the dead in case their death is result of an armed conflict which includes confirming their death, identifying the bodies and a decent burial and possible returns of the remains to family.

Humanitarian organisation can offer their services to the respective parties to help them fulfill their humanitarian obligations in the contact of dead bodies like the international committee of Red Cross which offers its forensic services for the cause of treatment and management of the dead bodies. Geneva Convention includes detailed prescriptions regarding the management of graves, it insists on respectful disposal of human remains.

In 1995, supreme tribunal of Columbia with supervision over administrative issues maintained that "mass graves must be avoided and that the departed must be buried individually subject to all obligations under the law".3 in a motion adopted in 2005, United Nation Commission on Human Rights, on human rights and forensic science, highlighted "The value of dignified conduct of human remains including their proper management and disposal as well consideration for the needs of the families of dead". UK published guidance for care of the deceased with suspected or confirmed cases of covid-19; it insists that the deceased should be treated with sensitivity, dignity and respect.

Therefore it can be concluded that there are various provisions for the management of the dead bodies and decent burial but in the case of covid-19 it poses a new challenge as there is a risk of infection, and the palpable fear among the people of infection lead to the stigmatization of families associated with the deceased. So the current situation the right to burial has been violated multiple times due to the conundrum the covid-19 health crisis pose.

Covid-19 has become an unprecedented challenge for India's economy, health and infrastructure. It became a dilemma for the government to ensure the decent burial or cremation of the dead covid-19 patient and at the same time to stop the further spread of the virus to get the economy which has gone in recession to emerge. Massive surge in the covid cases led to dead bodies abandoned to decompose.

Many incidents were reported during this crisis where dead bodies were noticed floating in the river Ganga in Buxar district of Bihar; similar sightings were later reported in unoa, Uttar Pradesh. Later NHRC issued advisory to centre and state to ensure the rights of dead insisting that it is legal right of people to have decent burial or cremation under Article 21 of the Indian constitution.

Right To Decent Burial: A Right Under Article 21

Article 21 of the Indian constitution states that: "Protection of life and personal liberty: No person shall be deprived of his life or personal liberty except according to the procedure established by law."

This article within its wide ambit covers various rights that became associated with the right to life as society progressed such as- right to shelter, right to livelihood, right to medical care, right to pollution free environment etc. Article 21 is also related with the rights of dead person. The court in suo motto v. the state of Tamil nadu observed that it was under the scope of article 21 of the Indian constitution includes the right of person to have decent burial.

Observing the facts of the case the honorable court also mentioned that anyone causing hindrance in the procedure of burial would be held liable under section 297 of IPC, which includes trespassing in places of burial. In the case of common cause (A regd. society) vs. union of india&others, it was stated that the right to live with dignity encompasses the right to die with dignity, the latter being inseparable part of the former.

In Anandhi Simon vs. the State of Tamil Nadu and Ors Madras, the high court clearly stated that law recognises the right of dead to have a decent burial.

In the case of Right to Decent & Dignified Last Rites/Cremations vs. State of U.P. and Ors, the Allahabad high court bench observed that the fundamental right to live with dignity exists after death.

In Vineet Ruia vs. The Principal Secretary, Ministry of Health and Family Welfare and Ors, the high court of Calcutta observed that the cultural aspects and the traditions are significant aspects of last rites of a person. The Supreme Court of India, along with many High Courts has clearly stated that a dead body (human corpse) must be managed with respect and appropriate dignity at the time of burial.

Dead Body Can Spread Covid-19: A Myth

According to the guidelines issued by ministry of health and WHO, dead bodies are not generally infectious except in cases of deaths which have been caused by hemorrhagic fevers. It's a myth that the carcass of covid-19 patient can spread the virus if it is buried; this myth has led to stigmatisation of covid-19 patients and their families.

This myth gave rise to fear and misconception about the ways by which virus can spread, which are nothing more than scientifically unsustained beliefs. This resulted in the attacks on healthcare workers, desertion of sick people and violent disruption of funerals of the victims of this virus. WHO report stresses that the virus will not spread by buried or cremated body as long as proper protocols has been followed and various guidelines has also been issued by centre and states stating the very same fact.

"The body takes 7-10 days to decompose, and the body fluids can take 3-4 days to dry up. Theoretically speaking, the virus lives until there are body fluids. But this infection spreads by droplets. There has been no case recorded where body fluids leaked from a body contaminated groundwater and spread infection," said Dr Satish Pawar, joint director, Directorate of Health Services, Maharashtra.

Thus the dead bodies of covid patient pose no risk as long as there management is performed with due care and consideration of guidelines issued by centre or respective local bodies.

Public Health Or Religious Freedom: Who Should Prevail?

Some residents of densely populated area of Bandra, Mumbai moved to Supreme Court to challenge the Bombay High Court order of April 27 rejecting the petition to stay burial at three cemeteries as petitioners feared the spread of the virus from the buried bodies. In the plea in Supreme Court the petitioner has contend that since there are other burial grounds where burial could take place, places near Bandra west should be avoided.

The petitioner has stated that "present unprecedented health situation ought to take precedence over the religious rights of the deceased's family members seeking to bury the deceased at the subject cemeteries." while the Jamiat Ulama-I-Hind, an organisation of Mumbai has pleaded before the Supreme Court that fear of the spread of virus from dead bodies was completely unfounded and unsupported by advisories issued by centre and WHO. The SC refused to interfere in the matter instead asked the high court to finalise the matter within two weeks.

In the unprecedented crisis like this it is pragmatic for health situation to take preference over the religious rights of a dead person for the greater good of the community but at the same time state should try its absolute best to rights of dead unless there is no other solution left.

Conclusion
There is no doubt that right to decent burial falls under the ambit and scope of right to life as supported by various pronouncements by Indian judiciary. There are various instruments and conventions at world stage which held right to burial or cremation as necessary human right accorded to every individual and some of these institutions work towards enforcing this right.

Due to the extraordinary circumstances crated by an unprecedented crisis these rights have been denied to numerous people including those who were at the forefront to battle this crisis, but Indian judiciary step to interfere in the mater to protect these rights is a laudable step and sets an example of the importance of institutions in the time of need.

The horror picture of healthcare workers being attacked and dead bodies floating on the holy river Ganga came into play majorly due to fear and misconceptions fanned by groundless and scientifically unsustained rumors. This bring into picture the pivotal role that communication channels can play to depart knowledge and dispel the myths that take troll on the minds of people and create a situation of chaos.

Furthermore there needs to be legislation in place which deals with burial or cremation so that this situation will not be repeated. And going ahead Indian healthcare system need to be more robust to prevent crisis like oxygen scarcity and the coordination between different state machineries need to be addressed as well.

References:
  1. Prashant kumar, Fundametal right to decent burial and right to reputation of deceased: a legal study during covid-19 panademic, II IJLLR.1-10, 1 (2021), https://hcommons.org/deposits/objects/hc:39910/datastreams/CONTENT/content
  2. Diganth Raj Sehgal, COVID-19 and The Right to Burial, ipleaders (oct. 16, 2021, 5:45), https://blog.ipleaders.in/covid-19-right-burial/?amp=1
  3. Meera emanuel, "article 21 includes right to decent burial", Madras HC registers suo motu PIL after mob obstructs burial of Doctor who died from COVID-19, Bar and Bench (oct. 16, 2021, 7:45 PM), https://www.barandbench.com/news/litigation/article-21-includes-right-to-decent-burial-madras-hc-registers-suo-motu-pil-after-mob-obstructs-burial-of-doctor-who-died-from-covid-19
  4. Md Hasnain Raza, COVID-19 and Right to Decent Burial: An Analysis, Latest Laws.Com, (oct.15, 2021, 8:45 PM), https://www.latestlaws.com/articles/covid-19-and-right-to-decent-burial-an-analysis/

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