Koninika Bhattacharjee, Student, School of Law, CHRIST (Deemed to be University), Bengaluru
Introduction – Burial as a Culture
“Across history, cultures with almost no other rituals in common treat their dead with reverence…”[1]
Today, the world witnesses numerous cultures and communities, each having their own sets of ideals, rituals and beliefs: from sky burials, dancing with the dead, underwater corpses to parading the dead and the age-old ground burials[2]. In some places, beads of red, blue or sometimes green are made from the ashes of loved ones that form a centrepiece of a living room decoration[3]. However, the one uniting factor of burials, amongst a few, is that of respecting the dead. The notion of respect is, therefore, deep-rooted in the minds of the people such that not treating the dead gently is a total no-go.
However, global burial rituals are now being dramatically questioned and changed by COVID-19. The World Health Organization (WHO), on 24th March 2020, laid down specific guidelines on burials of the pandemic victims, saying that dead bodies are generally not infectious[4]. On the contrary, the WHO guidelines’ restrictions on touching or kissing the body and government rules on social distancing have set meaningful funeral and death rites upside-down. So, US restricts any funeral gatherings; Iraq allocates a particular section of COVID-19 victims in a cemetery situated in the holy city of Najaf, south of Baghdad; Pakistan, Turkey and Ireland say goodbyes from a distance; France and Brazil do not let more than ten funeral grievers; Israel is facilitating a glass box where the corpses are placed; China reserves time slots for a family to pick up ashes and Philippines immediately cremates the dead within 24 hours[5].
Considering these crucial events, the Central Government of India issued an advisory urging its citizens to avoid any social stigma associated with the burial of COVID-19 victims[6]. Furthermore, the Union Ministry of Health and Family Welfare released guidelines on the management of corpses of those who die due to the pandemic[7]. These, however, have been misinterpreted by the common masses and given way for an unjust social dishonour looming over the final rights of the deceased. The pandemic has changed the traditions of respecting the dead, keeping it aligned with the contemporary notions of virus threat across the world.
The Debate of Constitutionality of Funeral Rites
The Constitution of India protects life and personal liberty of persons under Article 21. It involves all the rights that are inherent in the people of India and cannot be denied to them, unless in accordance with a procedure established by law. It is one such provision which is quite challenging to define, therefore, confining it to be just a guarantor against not taking away life is of no use – the definition of Article 21 has to have broader applicability. Through various cases, the Supreme Court has held that a dead man is as much titled to the right to dignity and fair treatment under Article 21 of the Indian Constitution, as any living person. This is because the word ‘person’ in the provision includes a dead person in a limited scope and that his right to live with human dignity extends to the right of treating his body with dignity, which he ought to have deserved if he was alive[8]. Thus, Article 21 imposes a duty on the State to ensure this is being adhered to by various stakeholders handling the corpses.
Section 3(42) of General Clauses Act, provides the definition of a person which includes any company or body of individuals or an association, either incorporated or not, and such a person acts as a legal entity that is recognized by the law of the land, having their own rights and duties. Unlike the various statutes and laws that govern the rights of a living person, the dead have rights only in the macro perspective of two broad heads – disposal of bodies and crimes against corpses. The idea is that of the corpses to be handled with dignity and rest undisturbed.
Disposal of bodies includes being buried with dignity, to gain proper burial facilities and possess the right not to be dug from the grave for any justifications mentioned in law (for crime investigations or pro bono reasons). In Parmanand Katara, Advocate v. Union of India & Anr.[9], the Supreme Court emphasized that the State must respect a dead person by allowing the dead body to be treated with dignity and unless a necessity arises for the purposes of establishing a crime, to ascertain the cause of death and be subjected to post-mortem or for medical education, scientific investigation or to save another person’s life in accordance with the law, the state has to preserve the rights of the dead body and cater to its disposal in harmony with human dignity. Thus, a Welfare State as such India has to fulfil its obligation to protect the rights of the dead person, in its extended meaning under Article 21, for the disposal of the body in a decent or dignified cremation/burial in accordance with the religious sentiments that man has believed or professed.
Section 297 of the Indian Penal Code (IPC) prohibits contempt of dead bodies. The provision states that if a person intends to dishonour the feelings of any person, or insult their religion, or commit a trespass in any place of worship or places separately arranged for the performance of funeral rites or where the remains of the dead are deposited, or causes any disturbance during the funeral rites, then such a person shall be punished with imprisonment of either description for a term that may extend to one year, or with a fine, or with both. With reference to Section 392 of IPC, the High Court of Madhya Pradesh found that the definition of the word ‘person’ cannot be construed as excluding the body of human being, that is, the human body has to be given certain rights, irrespective of being dead or alive[10]. On a suo motu public interest litigation taken up by the Madras High Court on 20th April 2020, the Court gave its verdict that the case prima facie includes a person who has practised a noble profession as a doctor and has been deprived of his right to be buried in a cemetery, for being a victim of the pandemic and for being a victim of an undeserved social stigma[11]. The pandemic has not only deprived the dead of its fundamental right of dignity, on the virtue of being a living human being once but also hinted towards a more lasting psychological and economic impact on the same.
Economics of the Dead
As discussed above, the purpose of dignified burial rights is to preserve the respect the person deserves on the virtue of being human, till his last breath. An individual who has been a part of the economy once, and helped, from a macro perspective, contributing to the flow of money in the economy, can be deemed as “efficient”. This can be explained better through the economics of dead. According to the United Nations, the global average expectancy has risen from 65 years for people born between 1990 and 1995 to 70 years for those between 2019 and 2015[12]. Some economists believe that increased life expectancy, in a fundamental sense, is good for the economy – when people live more, they consume more. Nevertheless, what will happen if there is a sudden depopulation fuelled by the coronavirus pandemic? Economists agree that this might have an inflationary impact on the economy. Likewise, the demand for labour will be on the rise, with increasing prices of commodities and no one being able to purchase because of the rising prices. The share of wages in output would be so less that it might exert downward pressure on the interest rates. Where lines of production would require hands-on work by the people, that could be replaced by Artificial Intelligence (AI), robots and algorithms[13]. However, since this automation has no need to be paid, demand deficiency could be worse off. With these pressing issues in front of the State, the rights of the dead may not be upheld in the most efficient manner. However, the entire purpose of this essay is to reiterate, yet again, how a physical mass of the body is due to the same human dignity, if not more, than a living and breathing individual.
Conclusion
The COVID-19 pandemic has compelled humans to face a situation that makes conducting traditional funeral rites quite challenging. The ways of burial and cremation, now, have to be moulded in a manner that grieving families are not burdened about a cultural side-line of saying one last goodbye to their loved ones. The increased number of deaths, in an ex-post vision, would have everlasting impacts on the economy. Developed, as well as emerging economies, may have to provide for a universal basic income, along with boosting hospital capacity and nationalizing the collapsed financial institutions and bankrupt industries. Even after containment, if a mere 1% of the disease is likely to be fatal, then it would have an everlasting impact on beliefs, behaviours, preferences, consumption patterns and interest rates. This troubled economy and impacted way of life will demonstrate an era of cultures becoming accustomed to these new modes of funeral rites. However, the idea of respect and love could never be replaced by bending the laws that protect the right of the deceased to be handled with human dignity.
[1] WILLIAM HENRY FRANCIS BASEVI, BURIAL OF THE DEAD (1920). [2] Tim Newcomb, 7 Unique Burial Rituals Across the World, BRITANNICA, ( May 17, 2020, 3:37 PM), https://www.britannica.com/list/7-unique-burial-rituals-across-the-world. [3] BBC News, World: Asia-Pacific Remembering the dead – with beads, BBC ONLINE NETWORK (November 5, 1998, 4:12 PM), http://news.bbc.co.uk/2/hi/asia-pacific/208616.stm. [4] World Health Organization, Infection Prevention and Control For The Safe Management of a Dead Body In The Context Of COVID-19: Interim Guidance, (24 March, 2020 License: CC BY-NC-SA 3.0 IGO), https://apps.who.int/iris/handle/10665/331538. [5] Jane Arraf, Daniel Estrin, Lauren Frayer, Coronavirus Is Changing The Rituals Of Death For Many Religions (April 7, 2020, 5:14 AM), https://www.npr.org/sections/goatsandsoda/2020/04/07/828317535/coronavirus-is-changing-the-rituals-of-death-for-many-religions. [6] Mohammed Imranullah S., Right to decent burial is part of fundamental right to life, says HC (April 20, 2020, 11:43 PM), https://www.thehindu.com/news/national/tamil-nadu/right-to-decent-burial-is-part-of-fundamental-right-to-life-says-hc/article31392061.ece. [7] https://www.mohfw.gov.in/pdf/1584423700568_COVID19GuidelinesonDeadbodymanagement.pdf [8] Parmanand Katara, Advocate v. Union of India & Anr (1995) 3 SCC 248. [9] (1995) 3 SCC 248 [10] Jamuna Das Paras Ram v. State of Madhya Pradesh AIR 1963 MP 106. [11] Id. at 6 [12] United Nations Department of Economics and Social Affairs, World Population Prospects – 2017 Revision: Global Life Expectancy, UNITED NATIONS DEPARTMENT OF PUBLIC INFORMATION ( June 21, 2017), https://www.un.org/development/desa/publications/graphic/wpp2017-global-life-expectancy. [13]Andy Mukherjee, Economic Life After COVID-19: Lessons from the Black Death, ECONOMIC TIMES ( March 29, 2020, 4:45 PM), https://economictimes.indiatimes.com/markets/stocks/news/economic-life-after-covid-19-lessons-from-the-black-death/articleshow/74870296.cms?from=mdr.
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