The National Human Rights Commission (NHRC) under the Acting Chairperson, and former Supreme Court Judge, Justice Prafulla Chandra Pant, has called for enactment of specific legislation for the purpose of upholding the dignity and protecting the rights of the dead. This is among the 11 recommendations of the commission, uploaded on its website on Friday. Apart from Justice Pant, the other members of the commission include Jyotika Kalra and Dr Dnyaneshwar Manohar Mulay.
On Thursday, the NHRC took cognizance of a complaint about several dead bodies found floating in the river Ganga in Uttar Pradesh and Bihar. It issued notices to the chief secretaries of both the states and the secretary, Union Ministry of Jal Shakti (Department of Water Resources, River Development and Ganga Rejuvenation), calling for an action taken report within four weeks.
Issuing the notices, the commission has observed that public authorities have failed to take concentric efforts in educating the masses and checking the immersion of half-burnt or unburnt dead bodies into the river Ganga. The practice of disposal of dead bodies in “our sacred river Ganga” is clearly in violation of guidelines of the National Mission for Clean Ganga project of Ministry of Jal Shakti, Department of Water Resources, River Development and Ganga Rejuvenation, the commission said. It reminded the authorities that the River Ganga (Rejuvenation, Protection and Management) Authorities Order, 2016 cast a duty that “no person shall do any act or carry on any project or process or activity which, notwithstanding whether such act has been mentioned in this Order or not, has the effect of causing pollution in the River Ganga”.
The NHRC’s Friday order, with 11 significant recommendations, was triggered after it received a complaint on May 11, based on several media reports, expressing apprehensions that these dead bodies were of Covid victims. The disposal of dead bodies in such a manner may, seriously affect all those persons, who are dependent on the holy river for their day-to-day activities, the complaint stated. “Even if these dead bodies were not of Covid victims, then such practice/incidents are shameful to the society as a whole as that amounts to violation of human rights of even deceased persons,” the NHRC quoted the complaint as saying. The complainant has requested for the intervention of the commission for strict action against negligent public authorities, who have failed to prevent such incidents.
The commission’s first major recommendation to enact specific legislation to protect the rights of the dead stems from its recognition that the right to life, fair treatment, and dignity, derived from Article 21 of the constitution extends not only to the living persons but also to their dead bodies. Keeping in view the large number of deaths during the second wave of the COVID-19 pandemic and challenges in the management of dead bodies, the commission issued the advisory for upholding dignity and protecting the rights of the dead.
The other 10 recommendations include:
- Temporary arrangements should be made urgently in order to avoid undue delay in cremations.
- The cremation/burial ground staff must be sensitised about proper handling of the dead body. Further, they need to be provided necessary safety equipment and facilities so that they may perform their duty efficiently without any fear or risk.
- Religious rituals that do not require touching the dead body may be allowed. Examples include reading from religious scriptures, sprinkling holy water, etc.
- In cases where family members or relatives are not there to perform last rites as they themselves may be infected or are not willing out of fear of getting infected etc., or where the repatriation of the body to the family may not be possible, the state/local administration may perform the last rites of the body, taking into account the religious/cultural factors.
- The use of electric crematoriums may be encouraged in order to avoid the health hazards emerging from the emission of smoke from burning pyres in large numbers.
- Piling of dead bodies during transportation or at any other place must not be allowed to happen.
- Mass burial or cremation should not be allowed to take place as it is in violation of the right to dignity of the dead.
- 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.
- The prices of hearse or ambulance services should be regulated so that people are not exploited and do not face difficulties in the transportation of dead bodies.
- The staff at crematoriums, burial grounds, mortuaries, etc must be paid fair wages to compensate for their hard work. Further, they should be vaccinated on a priority basis keeping in view the risk they are exposed to.
Signed by the NHRC’s Secretary-General, Bimbadhar Pradhan, the commission has requested all the concerned authorities of the union or state governments and union territories to implement the recommendations made in the advisory and to submit a report about the action taken or proposed to be taken, within four weeks to the commission.
The guidelines issued by the World Health Organisation, National Disaster Management Authority (NDMA), government of India and various state governments have emphasized adhering to COVID-19 protocols while upholding the dignity of the dead, including decent burial according to respective religious customs and practices. The Supreme Court and various high courts have highlighted the importance of providing decent burial to dead persons amidst this pandemic. Despite these guidelines, various disturbing media reports have surfaced about the mismanagement or mishandling of COVID-19 infected dead bodies, thereby lowering their dignity. The NHRC’s intervention, therefore, is timely.
What is of interest is the NHRC’s attempt to collect the case law on the subject to justify its advisory. The commission traced the case law to the Supreme Court’s judgment in the landmark case of Parmanand Katara v Union of India (1989) which recognised that the right to life, fair treatment and dignity, derived from Article 21, extend not only to a living person but also to his dead body. Recognition of posthumous legal rights, the commission said, gives the dead significant moral standing within our legal system. The law also strives to honour a decedent’s wishes and to protect his interests, it added.
Again, it was reiterated by the apex court in the case of Ashray Adhikar Abhiyan v. Union of India, that dignity of the dead must be maintained and respected. Moreover, it extended the right to homeless deceased persons to have a decent cremations according to the religious customs they belonged to. The court also established a corresponding duty on the state to ensure that decent cremation is served to the person.
In P. Rathinam v. Union of India, the ambit of Article 21 was widened to include the dignity of a person. It emphasised that the right to life means a meaningful life and not merely animal existence. Further, this right to dignity was also expanded to a dead person.
In the case of S. Sethu Raja v. Chief Secretary, the Madras high court directed the government authorities to bring the dead body of a person (who was murdered and whose body was kept at a mortuary in Malaysia), so that burial can take place at home according to traditions and customs of his family.
In Ramji Singh and Mujeeb Bhai Vs. State of U.P. & Ors, the Allahabad high court contended that a person’s right to life includes the right of the dead body to be treated with the same respect that he would have deserved if he were alive. It is imperative for the state to treat the corpse with dignity, and must only resort to postmortem if it is a necessity, the high court held.
Under Section 297 of the Indian Penal Code, the rights of deceased persons include the right against trespass of burial sites, places of funeral rites, etc.
Section 404 IPC deals with punishment for dishonest misappropriation of property of a deceased person at the time of his death.
Section 499 IPC makes it an offence to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.
Section 503 IPC brings a threat to injure the reputation of any deceased person in whom the person threatened is interested, within the scope of the offence of criminal intimidation.
The Transplantation of Human Organs and Tissues Act, 1994 (THOTA) guarantees a deceased person the right to protect and preserve the human organs or tissue or both of the dead body from being harvested without his or her consent or the consent of near relatives.
In both natural or unnatural deaths (accident, suicide, homicide, etc.) it is the duty of the state to protect the rights of the deceased and prevent crime over the dead body. It is also a requirement that the states or Union territories prepare an SOP in consultation with all the stakeholders so that the dignity of the dead is ensured and their rights are protected. The stakeholders include hospital administration, police, forensic medicine personnel, district administration, municipal corporation, civil society groups, etc. as well as citizens of the country. The commission has, in separate sections, dealt with the duties of all the stakeholders, in ensuring the dignity of the dead and protecting their rights.
The commission has also cited some of the international covenants and laws that deal specifically with the dignity of the dead. They are:
- Article 16 (II paragraph) of Geneva Convention 1949 IV provides “As far as military consideration allows, each party to the conflict shall facilitate the steps taken to protect the killed against ill treatments”.
- Article 3 (a) of the 1990 Cairo declaration on Human Rights in Islam provides “In the event of the use of force and in case of armed conflict- it is prohibited to mutilate dead bodies”.
- UN Commission on Human Rights in a Resolution adopted in 2005, underlined the importance of dignified handling of human remains, including their proper management and disposal as well as of respect for the needs of families.
- The UN’s Inter Agency Standing Committee’s Operational Guidelines on Human Rights and Natural Disasters recommend that appropriate measures should be taken ‘to facilitate the return of remains to the next of kin. Measures should allow for the possibility of recovery of human remains for future identification and reburial if required’.
- International humanitarian law [Article 130(1) of the fourth Geneva Convention] provides that States should ensure that ‘graves are respected, properly maintained, and marked in such a way that they can always be recognized’.
The commission has recommended that each state must maintain a district-wise digital dataset of death cases. A dynamic web portal for displaying data for both identified and unidentified bodies must be created and it must be the responsibility of the state to ensure the protection of such data, it has said.
Secondly, digital confirmation of the death of a person must be simultaneously updated in all documents such as bank account, Aadhar card, insurance etc., wherever applicable, to prohibit the scope of any impersonation or illegal monetary transaction gains.
Thirdly, whenever there is any calamity or disaster or major accident, etc., leading to deaths of persons being away from family, the government should create a 24×7 helpline facility to help the families of deceased persons for collection of bodies or to report any grievance regarding any unethical behavior such as assault or any inhuman conduct with the body of the deceased.
Fourth, in the event of legal heirs disowning the body and depriving it of a decent burial, the local government or civic body should ensure proper disposal of the body after due legal procedures like a post-mortem, etc.
Fifth, the commission has recommended that the law should be amended to the effect that the will of the deceased regarding organ donation is given prime importance irrespective of the opinion of the legal heir.
Sixth, the commission has asked the local authorities to ensure that the transportation facilities are available to transport the body of the deceased at the request of family members.
Seventh, the last rites of unidentified dead bodies should be performed with honor and dignity while taking their religion into consideration. The necessary funds required for this purpose may be adequately maintained, it suggested.
Judgments of high courts
The commission drew support from some of the recent judgments of high courts.
The Karnataka high court on July 27 last year stated that the state government and civic body Bruhat Bengaluru Mahanagara Palike (BBMP) are bound to come out with guidelines to ensure the dignity of the dead. The court directed the state government of Karnataka to ensure that dead bodies are given a proper burial or cremation. The Karnataka government promptly complied with the high court’s order by releasing guidelines for the management of dead bodies during COVID-19.
The Calcutta high court on September 16 last year in the case of Vineet Ruia Vs The Principal Secretary, Department of Health & Family Welfare, Govt. of West Bengal & Ors , was of the firm view that the right to dignity and fair treatment under Article 21 of the constitution is not only available to a living person but also to his mortal remains after his demise. Disposal of a human body, whether or not the person dies of COVID-19, whether by cremation or burial, should be done with due respect and solemnity, the high court held.
The Telangana high court on April 27, in the case of R. Sameer Ahmed Vs State of Telangana & Ors. observed that ” human bodies are not being treated with the dignity they deserve. The dead bodies are piling up waiting to be cremated due to paucity of space and non-availability of adequate facilities and manpower.” The state was asked to submit the details of the number and capacity of the cremation.
NHRC’s role under scrutiny
With the NHRC making significant recommendations, the question which is bound to arise is whether they would be considered as binding on the authorities.
The NHRC’s significant intervention has happened amidst the widespread view among the observers that it has, of late, lost its sheen and relevance, with the powers-that-be not inclined to strengthen it as an institution.
The NHRC – now a six-member body – has three vacancies. The post of the chairperson has been vacant since December 2 last year when the last chairperson, Justice H.L. Dattu retired. The posts of two members have also been lying vacant since September 2018. The commission consists of a chairperson and five full-time members.
The Protection of Human Rights Act, 1993 has been amended in 2019 to provide for the appointment of a former CJI or a Judge of the Supreme Court as the chairperson. Earlier, only a retired CJI could be appointed as the chairperson. The Act was also amended to provide for the appointment of three members (instead of two before the amendment) one of whom should be a woman, with knowledge of or previous experience in human rights. The commission has two posts of judicial members, one who had been a judge of the Supreme Court, and another who had been chief justice of a high court. Of these, the post of a member who had been chief justice of the high court is also vacant since 2018.
The tenure of the chairperson and the members also stood reduced from five years to three years as per the 2019 amendment, although they would be eligible for reappointment for another term or until they attain the age of 70 years whichever is earlier. The amendments as well as the non-filling of vacancies in time is seen as a weakening of the institution, which has great potential to advance the cause of human rights.
Friday’s order advancing the rights of the dead, is perhaps indicative of what the commission, with its full strength, and a guaranteed tenure for its members, could achieve in terms of effective intervention when the executive is widely perceived to have contributed to a serious crisis of humanity because of its omissions and commissions.