Right to decent burial in the light of COVID-19

'Death is the mother of beauty. Only the perishable can be beautiful, which is why we are unmoved by artificial
flowers'
Wallace Stevens
Abstract
The world is currently facing a hard-to-escape drama of reality, none other than the deadly disease, COVID-19.
Every single day has become a fight for survival for every single human being on the planet, but more so, for
the patients, doctors, nurses, ambulance drivers, janitors and funerary service providers. As patient numbers
rise, countries look to contain the disease, and nothing more. The fight for survival is being given paramount
importance, but in the haste of it all, are we absolutely disregarding to honour the COVID-19 warriors who
painfully succumbed to the dreaded disease? Do the dead seem to become dead in every sense?

Keywords
COVID-19, burial, death.

Analysis
The situation of handling COVID-19 patient bodies is different at different parts of the world. In China, the
dead bodies immediately become like state property. The government undertakes to bury them, and in many
cases, cremation happened right after the death, in the absence of family members. Official orders in fact, were
released on February 2, directing the local authorities to cremate bodies of COVID-19 victims immediately,
even if the family refused to cooperate with the orders. Looking at Italy, COVID-19 has denied dignity to the
dead. The virus is denying families of the chance to say a final goodbye to their near and dear ones. An
emergency national law has placed a ban on funeral services in Italy to prevent the rapid spread of the virus.
This is unprecedented, especially for a country with strong Roman Catholic values. In Sri Lanka, cremation has
been made compulsory, and the government has disregarded the oppression of the Muslim community and has
asked them to keep faith aside and give importance to the contagious nature of the disease. i The scenario in
India doesn’t look pleasant either.

In India, it was only a few days ago that the former Union Minister and Sr. Adv. Ashwani Kumar submitted a
petition at the Supreme Court of India to allow taking suo moto cognizance of disrespectful disposal of dead
bodies and manhandling of COVID-19 patients.ii In his letter he mentioned that the indignity that the bodies face
is a "grave infraction of the citizen's right to die with dignity". iii In the light of the pandemic, this issue is gaining
traction all over. The Supreme Court on June 12 lashed out at State Governments and hospitals of the country
for the manner in which the Covid-19 dead bodies are dealt with and said that the situation in a few cases was
worse than what animals have to suffer. iv The Ministry of Health and Family Welfare, Government of India has
in fact laid down a number of guidelines on the burial of dead bodies of patients. Certain visuals from places
such as Delhi, West Bengal, Maharashtra and Puducherry are extremely cruel and needless to say, horrific. Yet,
every day, news channels broadcast videos of bodies ruthlessly thrown, bodies denied burial space, patients
chained to hospital beds etc., which brings us to thinking how ungrateful of their struggle that is. There are
bodies being piled up in mortuaries, funerals being stalled in protest, family members being forced to flee with
half-burnt bodiesv, ambulances attacked, acute shortage of burial land, nonfunctional crematoriums and the like,
which add to the list of how the right to die with dignity is being unacceptably violated. Rights of patients too
are being violated, as seen in the case of a deceased patient in Chennai who lay in a bed right next to a COVID-
19 patient for nearly thirty hours, without being shifted to a mortuary facility. Many a time, family members
too, are not informed promptly of the death of patients. Sometimes, hospital authorities undertake the duty of
cremation. There have been such instances where the authorities have failed to inform the same to the family
members of the deceased person, thereby making them unable to attend or conduct the ceremonious last rites.
In the same backdrop, people have praised the COVID-19 warriors in their balconies with hoots, claps, chiming
spoons and plates.

The former Chief Justice of India, Dipak Misra stated in his obiter dictum in the case of Common Cause (A
Regd. Society) v Union of India (UoI), 2018 that, “In a certain context, it can be said, life sans dignity is an
unacceptable defeat and life that meets death with dignity is a value to be aspired for and a moment for
celebration”. This is the value that the author wishes to respect in times of incessant deaths around the world.
Also, in Parmanand Katara, Advocate v. Union of India & Ors. vi, the Supreme Court of India held that “We
agree with the petitioner that right to dignity and fair treatment under Article 21 of the Constitution of India is
not only available to a living man but also to his body after his death. We thus find that the word and expression
‘person’ in Article 21, would include a dead person in a limited sense and that his rights to his life which
includes his right to live with human dignity, to have an extended meaning to treat his dead body with respect,
which he would have deserved, had he been alive subject to his tradition, culture and the religion, which he
professed. The State must respect a dead person by allowing the body of that dead person to be treated with
dignity and unless it is required for the purposes of establishing a crime, to ascertain the cause of death and be
subjected to post-mortem or for any scientific investigation, medical education or to save the life of another
person in accordance with law, the preservation of the preservation of the dead body and its disposal in
accordance with human dignity.”vii Therefore, just like the book written by Laura Lin is titled, in death there is
life. Until the face of the person vanishes from the earth, their life is brightly burning- through people's tears,
unfulfilled dreams, scary nightmares- till at last it becomes a faded incident.
Governments have absolutely belittled the issue of careless burials as they are running the race to contain the
disease. Amid the sharply rising cases, the deaths are absolutely no cause of worry. But as a rational human
being, every person would believe in the dignity of a human being. And that right to dignity is not just conferred
by the Constitution to be stripped away right after their death. This is because, in life and death, a human being
is a human being. As much as we value one's life, we also learn to respect their death; because dying does not
mean that the life lived by the body that held that soul hasn't left footprints on the planet. They're all human
beings with equal dignity as the living do, and there seems to be no reason to deny them the same. Thus, in their
death too, a certain code of conduct should be followed while disposing their bodies.

Secondly, the rights of the family members of the deceased should also be considered. No person would wish
for their relative to be buried or cremated hastily with no opportunity for a final heartfelt goodbye. They will be
longing for that one last chance to kiss them goodbye. Although, to give the last kiss is against COVID-19
Funeral Protocol (and rightly so), the grant for a final sight is truly out of question. They will want to bid a
farewell in the most respectable and ceremonious manner, to pay tribute to the valuable presence of the
deceased in their life.

The legal framework of India supports the claims for right to decent burial in this sense. The Supreme Court has
reiterated that the Right to Life enshrined in Article 21 of the Constitution of India also includes the right to
decent burial. If one were to look at international law, it can be seen that the United Nations Commission on
Human Rights (UNCHR) has adopted a resolution in the year 2005 , "on human rights and forensic science''
which underlined the importance of dignified handling of human remains, including their careful and proper
management and disposal as well as the respect for the needs of families. Also, the Geneva Convention of 1949
states in its Article 16 that the states, “As far as military consideration allow, each party to the conflict shall
facilitate the steps taken to protect the killed – against ill treatments. This is because law governs every aspect of
this world and so, unless and until the entity vanishes from earth, the law can still control it. No law would
favour the derogation of the deceased. The Article in fact does not endeavour for a mere animal survival but for
rights that entitle human beings to much more. In India especially, being a country that preserves its rich culture
even in funerals, the cremation or burial of persons are considered an important function to mark their departure
from this world.

Also, in the light of the ongoing pandemic, it is to be noted that there's no scientific reason behind the haste in
disposing bodies as there's no proven report that cadavers of patients communicate the disease, as by the
Bombay High Court.viii Additionally, organizations such as the World Health Organization and others, have in
fact stated that there is no possibility of an airborne transmission of COVID-19. Hence, in such a scenario, there
isn't even a solid reason to back the disrespectful and demeaning disposal of patient bodies. Even under ordinary
circumstances it is seen that the body is fenced by wires and the public can view it only from a distance. They
can't even do so much as touch the casket in which the body is placed, which is sorrowful enough. In this
situation it is only acceptable if hospital authorities could wait for a reasonable period of time and then bury the
body in a manner that dignifies the body and soul, in cases where relatives are unfound after repeated efforts.

Additionally, depriving burial spaces in family tombs owing to a fear of disease spread in community areas is
also prevalent in these times. It is because families preserve their culture and traditions of burying family
members in certain spaces, and disallowing this is a breach of their right to conduct their family affairs as per
their choice. For just as it has been aptly stated in the case of Ram Sharan Autyanuprasi v. Union of India ix, "It
is true that life in its expanded horizons today includes all that give meaning to a man's life including his
tradition, culture and heritage and protection of that heritage in its full measure would certainly come within the
encompass of an expanded concept of Article 21 of the Constitution". A death, although is a horrifying event in
a family, it is as important a day as their birth. Thus, these freedoms may be curbed only if there is some proven,
legitimate reason for restricting such ritualistic practices.

A major criticism for defending more people-friendly COVID-19 body disposals, is the comparison drawn with
anthrax communicating in Siberia from the cadaver of an infected reindeer. The two diseases are of a similar
nature as well. However, the geographical conditions in Siberia are to be taken into account here. Siberia is a
country located at the Arctic Circle which has layers of snow that doesn't thaw. This causes delay in
decomposition of bodies, which in turn leads to the spread of viruses. x This is however, in no way related to the
Indian scenario, nor is it a situation to draw a parallel with any other country with a tropical climate.

Taking these arguments into account, it can be safely concluded that burial practices in India need to be done
with further care and caution, with each and every dead body. The corpses cannot be left at the hands of hospital
staff and authorities to simply be tampered with. It needs to be treated with dignity and respect, and the need to
recognize the same, is more right now, than ever. Let us follow the unsaid rules and create a safe and congenial,
yet respectable environment for all during this terrifying and daunting crisis.
i
S Roy, Right To A Decent Burial: Death From Inevitable Conclusion To Terrifying Phantom (Jun. 20, 2020),
https://www.northeasttoday.in/2020/06/21/right-to-a-decent-burial-death-from-inevitable-conclusion-to-terrifying-
phantom/.
ii
SC to hear alleged harassment of COVID-19 patients, decent burial (Jun. 12, 2020), https://nenow.in/north-east-news/sc-
to-hear-alleged-harassment-of-covid-19-patients-decent-burial.html.
iii
L Correspondent, Supreme Court urged to protect patients’ right to dignified death, burial (Jun. 11, 2020),
https://www.thehindu.com/news/national/supreme-court-urged-to-protect-patients-right-to-dignified-death-burial/
article31799742.ece.
iv
M Mishra, Slew Of COVID related Directives From SC, HCs Keep Centre, State Govts On Their Toes (Jun. 16, 2020),
https://www.indialegallive.com/special-story/slew-of-covid-related-directives-from-sc-hcs-keep-centre-state-govts-on-their-
toes.
v
R Parihar, COVID deaths deserve a decent adieu (Jun. 18, 2020), https://www.dailyexcelsior.com/covid-deaths-deserve-a-
decent-adieu/.
1989 SCR (3) 997.
vi
1989 SCR (3) 997.
vii
H Gautam, Mishandling Of COVID-19 Affected Dead Bodies (Right To Life & Right to Die With Dignity)
https://www.livelaw.in/columns/mishandling-of-covid-19-affected-dead-bodies-right-to-life-right-to-die-with-dignity-
158416 (Jun. 16, 2020), https://www.livelaw.in/columns/mishandling-of-covid-19-affected-dead-bodies-right-to-life-right-
to-die-with-dignity-158416.
viii
Coronavirus: Right to decent burial facet of right to life, says Bombay High Court (May. 22, 2020),
https://economictimes.indiatimes.com/news/politics-and-nation/virus-right-to-decent-burial-facet-of-right-to-life-says-hc/
articleshow/75900298.cms.
ix
1989 SCC Supl. (1) 251 JT 1988 (4) 577.
x
D Mittal, & D Mittal, The Reemergence of Pandemics and the Right to Burial (Jun. 13, 2020),
https://www.jurist.org/commentary/2020/06/mittal-mittal-covid19-burial/.