Context: Recently, National Human Rights Commission (NHRC) has issued advisory for upholding the dignity and protecting the rights of the dead. 

More in the News

  • The advisory has been issued by NHRC in view of deaths during the second wave of COVID-19 pandemic and challenges in management of dead bodies.
  • Recently, several bodies, suspected to be of those who died of COVID-19, have been found floating in the Ganga in Bihar and Uttar Pradesh in the past few days.
  • Due to Virus led record number of deaths, the process of management of dead bodies while adhering to the COVID safety protocol, transportation of bodies and their burial or cremation, etc., has become challenging.

Key observation

  • Despite Guidelines issued by World Health Organization and judgements by Supreme Court and various High Courts disturbing facts have surfaced about the mismanagement and mishandling of COVID-19 affected bodies thereby lowering their dignity.
  • It is the duty of state to protect the rights of the deceased and prevent crime over the dead body, and prepare an SOP in consultation with all stakeholders.
  • It is a well-accepted legal position that the right to life, fair treatment and dignity, derived from the Article 21 of the Constitution, extends not only to the living persons but also to their dead bodies.
  • Advisory Issued
    • In view of long queue of bodies seen at crematoriums, temporary arrangements should be made urgently in order to avoid undue delay in cremation. 
    • The cremation and burial ground staff must be sensitized and they should also be provided necessary safety equipment and facilities.
    • In cases where family members or relatives are not present to perform last rites, the State or Local Administration may perform the last rites taking into account the religious and cultural factors. 
    • Piling up of bodies during the transportation or at any other place must not be allowed to happen. 
    • Accurate identification of the dead body must be aimed by using different criteria for identification and the State Authorities must ensure proper handling of the information about the dead and missing persons in disasters. 
    • To curb overcharging for transportation of dead bodies the prices of the hearse and ambulance services should be regulated so that people are not exploited. 
    • The staffs at crematoriums, burial grounds and mortuaries working round the clock during this wave of pandemic, should be paid fair wages and they should be vaccinated on priority basis. 
    • The police administration should ensure that there is no undue delay in post mortem
    • Each state must maintain a district wise digital data set of death cases; death of a person must be simultaneously updated in all documents such as bank account, Aadhaar card, insurance.
    • The concerned authorities of the Central and State governments must implement the recommendations and submit the report about action taken on the advisory within four weeks to it.

Rights of the Dead under the Law and Legal remedies

  • The living person, under various statutes, laws etc are given innumerable rights whereas the dead persons only have rights in macro sense in two main areas: 
    • Disposal of bodies
    • Crimes against the corpses
  • Various judgments of Supreme Court have expanded and modified the scope of Article 21 of the Indian constitution.
  • Right to be cremated with human dignity: Right of cremation with dignity is an inseparable facet of the Right to Life. 
    • In the case of Pt. Parmanand Katara Vs. Union of India, it was held by the apex court observed that the word and expression ‘person’ in article 21, would include a dead person. The dead body will be cremated with respect.
  • Right to die with dignity: The landmark judgment of Common Cause (A Regd. Society) v. UOI & Anr. 2018, cleared the air on passive euthanasia in India. 
    • It is observed that the right to live with dignity includes autonomy in relation to the process of dying and choosing to not undergo pain and suffering.
  • In Ashray Adhikar Abhiyan v. Union of India, the court held that it is the obligation of the State to have a decent burial to the deceased person as per their religious belief.

What Indian Penal Code Say?

  • Trespassing a burial place, place of worship and place of sepulchre is a cognizable offence under Section 297 of the Indian Penal Code, it clearly prohibits irreverence to dead bodies.
    • The right to decent burial comes under the Indian Penal Code. But who is authorized to decent burial is not mentioned anywhere in the law. 
    • Generally, this right will go to the living spouse or to the next kin.
  • Section 404 of the Indian Penal Code deals with dishonest misappropriation of a dead man’s property.
    • A person prosecuted under Section 404 of IPC, can be punished with imprisonment either description for a term which may extend to 3 years and also shall liable to fine and if the offender is a clerk or a servant of the deceased person, the imprisonment may extend upto 7 years.
  • Section 503 of the Indian Penal Code which deals with criminal intimidation, which also includes threatening a person with injuring the reputation of a dead person dear to him as an offence.

Source: NewsonAir