Right to decent burial is part of fundamental right to life, says HC

Judges issue warning to those objecting to disposal of bodies of COVID-19 patients; say trespassing into a burial ground is a punishable offence

21/04/2020, MOHAMED IMRANULLAH S.,CHENNAI

Observing that the fundamental right to life guaranteed under the Constitution includes the right to decent burial or cremation, the Madras High Court on Monday warned local residents against raising objections to the disposal of the bodies of those who had died due to COVID-19.

Justices M. Sathyanarayanan and M. Nirmal Kumar took up a suo motu public interest litigation petition, with the permission of Chief Justice Amreshwar Pratap Sahi, after a neurosurgeon’s body was not allowed to be buried in a cemetery at Kilpauk here on Sunday.

The judges said, according to news reports, local residents had opposed burial of the surgeon’s body at the Kilpauk cemetery. Consequently, the body was taken to a burial ground at Velangadu in New Avadi Road where again a mob attempted to prevent the burial.

In the process, some public servants had sustained injuries when they attempted to disperse the mob. The ambulance, in which the body was transported, was also damaged. Such acts were completely unacceptable and legally punishable, the judges pointed out.

“It prima facie appears that as a consequence of the above said alleged acts, a person who practised a noble profession as a doctor, and breathed his last, has been deprived of his right to have a burial in a cemetery earmarked for that purpose,” the Division Bench lamented.

The Bench pointed out that the Code of Criminal Procedure contains enough provisions to deal with maintenance of public order, discouraging unlawful assemblies, dispersal of such assemblies using civil force and immunity to police personnel involved in such action.

Authoring the interim order, Justice Sathyanarayanan also pointed out that Section 297 of the Indian Penal Code states it is a punishable offence to trespass into a burial ground or crematorium and cause indignity to the corpse or disturbance to performance of funeral rites.

Centre’s guidelines

People found guilty under the Section could be punished with imprisonment that could extend up to one year or with fine or both. The court also recalled that the Centre had already issued an advisory to the citizens and urged them to avoid social stigma associated with COVID-19.

Further, the Union Ministry of Health and Family Welfare had also issued guidelines on March 16 with respect to management of bodies of those who die due to COVID-19. Those guidelines require strict adherence to infection prevention control practices.

Those guidelines require the body to be secured in a body bag, the exterior of which should be decontaminated. “Environmental cleaning and disinfection of surfaces is to be done with one per cent Sodium Hypochlorite solution. Autopsy should be avoided and embalming should not be allowed.

“At the crematorium/burial ground, the staff should be sensitised that COVID-19 does not pose additional risk,” the Ministry’s guidelines read. Stating that these guidelines were available in the public domain, the judges said, people were expected to be aware of them.

The court also ordered notice to the State government and adjourned further hearing on the PIL petition to April 28.