THE Covid-19 pandemic is raging across the world and has halted normal life. Social distancing and wearing facemasks in public places is the new normal. Religious and social gatherings have been banned. On March 27, a New York Times report on the situation in Italy quoted a mortuary worker saying, “Usually we honor the dead. Now it’s like a war and we collect the victims.”

The pandemic has unfolded a similar heart-wrenching reality in our country. The National Human Rights Commission (NHRC) issued notice to the Uttar Pradesh Government after media reports showed bodies of Auraiya road accident victims being carried along with injured migrant labourers in the same vehicle by the authorities. Recently, the Delhi High Court expressed its anguished after media reports showed the inside of a COVID-19 mortuary of Lok Nayak Hospital in Delhi where there are 108 bodies; all 80 storage racks are full and there are 28 bodies on the floor, piled on top of each other. While taking suo motu cognizance of the violation of the right of the dead, the High Court observed:

“We, as citizens of Delhi are pained at the aforesaid state of affairs and as judges find the situation as reported and if true, to be highly dissatisfactory and violative of the rights of the dead”.

The stigmatization attached to those found positive for Covid-19 while abhorrent to those living has also created difficulties for the dead. The body of a 69-year-old doctor, who died of COVID-19 complications on Wednesday morning, was laid to rest on Thursday afternoon after localities elsewhere in Shillong and beyond disallowed his last rites for fear of contagion. As per the reports, a renowned spiritual singer who died of Covid-19 could not be cremated for hours, as residents of his native town in Punjab surrounded the cremation ground and stalled the funeral because they believed it would spread the virus.

In an infelicitous incident, the body of the doctor, who suffered a heart attack on account of Covid-19 infection, was taken to Christian Cemetery at Kilpauk in Chennai. The residents of the area assembled in large numbers and opposed the burial of the body. In the process, the ambulance carrying the body was also attacked. The body was then taken to Velangadu and buried.

This resulted in Madras High Court initiating suo motu proceedings to reiterate that the scope and ambit of Article 21 includes, right to have a decent burial.” It went on to state:

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


Right of Dignity in Death


The then Chief Justice Dipak Misra in his opinion in Common Cause vs. Union of India, albeit in different context observed: “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”.

Article 21 of the Constitution of India provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law. The ‘procedure’ mentioned in Article 21 has been read into the ‘due’ procedure by the Supreme Court in Maneka Gandhi vs. Union of India which means that procedure must be fair, just and reasonable. Over the period of time, the Supreme Court has interpreted Article 21 to include various rights within its fold. The Supreme Court in Kharak Singh vs. State of Uttar Pradesh quoted Field, J. (in Munn v. Illinois) who defined “life” in the following words:

“Something more than mere animal existence. The inhibtion against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm or leg, or the putting out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world.”

It has framed the “right to life” as more than mere existence and as a right that includes living with dignity. In P. Rathinam v. Union of India, the Supreme Court held that the word ‘life’ in Article 21 means right to live with human dignity and the same does not merely connote continued drudgery. The Article takes within its fold “some of the finer graces of human civilization, which makes life worth living”, and that the expanded concept of life would mean the “tradition, culture and heritage” of the person concerned.

Right to dignity is not only available to a living man but also to his body after his death was articulated by the Supreme Court in Parmanand Katara (Pt.) v. Union of India. This was a petition that challenged the method of execution of the death sentence by hanging under the Punjab Jail Manual as inhuman and violative of Article 21 of the Constitution. The petitioner pointed out the Jail Manual which required the body of a condemned convict to remain suspended for a period of half an hour after hanging as violative of right to dignity.

Although the Supreme Court rejected the challenge to the method of execution by hanging, it accepted the contention of the petitioner suspending the body for a period of half an hour after death as a violation of its right to dignity. The Supreme Court held:

“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 make it clear and hold that the jail authorities in the country shall not keep the body of any condemned prisoner suspended after the medical officer has declared the person to be dead. The limitation of half an hour mentioned in para 873 is directory and is only a guideline”. 

Further, in Ashray Adhikar Abhiyan vs. Union of India, the court accepted the various steps taken by the Police and the local body for providing a decent burial to a homeless dead person, according to the religious faith to which he belonged. The petition was disposed of on the basis of sworn affidavits by the Deputy Municipal Health Officer of the Municipal Corporation of Delhi and the Deputy Commissioner of Police (Headquarters), Delhi.

In S. Sethu Raja vs The Chief Secretary, directed authorities to bring back the petitioner’s son’s dead body from Malaysia.

By our tradition and culture, the same human dignity (if not more), with which a living human being is expected to be treated, should also be extended to a person who is dead”.

It went on to state: “There can be no dispute about the fact that the yearning of a father to perform the obsequies for his son who died in a alien land, is as a result of the traditional belief that the soul of a person would rest in peace only after the mortal remains are buried or burnt.”

Traditions and cultural aspects are inherent to the last rites of a person’s dead body. Right to a decent funeral can also be traced in Article 25 of the Constitution which provides for freedom of conscience and free profession, practice and propagation of religion subject to public order, morality and health and to the other fundamental rights under Part III of the Constitution.


A decent funeral in COVID-19


A recent decision of the Bombay High Court in Pradeep Gandhy vs. State of Maharashtra has addressed the issue of burial and last rites of a Covid-19 patient’s body. In this case, initially, the Municipal Corporation of Greater Mumbai provided that all the dead bodies of COVID-19 patients should be cremated at the nearest crematorium irrespective of religion. The said circular further allowed family and friends to make their own arrangement and take the body for burial outside Mumbai City’s jurisdiction for burial after following all guidelines and precautions for the disposal of dead bodies of Covid-19.

On the same day of issuing the circular, it was amended to allow the burial of Covid-19 dead bodies in city’s burial grounds provided they were large enough to not create the possibility of further spread in the neighbourhood. The amended circular specified twenty kabrasthans/cemeteries for burial. The petitioner challenged the amended circular on the grounds that the burial of Covid-19 dead bodies could lead to the further spreading of Covid-19. The High Court dismissed the petition to uphold the amended circular and noted the right of burial as part of the right to freedom of religion.

On the challenge to the amended circular, the court held:

“We find little reason to deprive the dead of the last right, i.e., a decent burial according to his/her religious rites. On the face of there being no evidence, at least at this stage, that COVID-19 infection may spread to living human beings from the cadaver of any suspected/confirmed COVID-19 infected individual”.


COVID-19 regulations and right to a decent funeral


Guidelines issued by the Central Government on Covid-19 dead body management nowhere puts ban to funeral or burial. The orders issued by the Union Home Ministry from time-to-time have provided a set of guidelines regulating the funeral in the times of pandemic. It prescribes that in the case of funerals the congregation cannot have more than 20 persons.

The guidelines only aim to regulate the last rites keeping the pandemic into consideration. It, thus, inter-alia provided:

  • Religious rituals such as reading from religious scripts, sprinkling holy water and any other last rites that does not require touching of the body can be allowed.
  • Bathing, kissing, hugging, etc. of the dead body should not be allowed.
  • The funeral / burial staff and family members should perform hand hygiene after cremation/burial.
  • The ash does not pose any risk and can be collected to perform the last rites.
  • Large gathering at the crematorium/burial ground should be avoided as a social distancing measure as it is possible that close family contacts may be symptomatic and/or shedding the virus”

India’s dead body management rules are further consistent with World Health Organization prescriptions. According to WHO people who die from COVID-19 can be buried or cremated.  Those tasked with placing the body in the grave, on the funeral pyre, etc., should wear gloves and wash hands with soap and water after removal of the gloves once the burial is complete. To date, says WHO, there is no evidence of persons having become infected from exposure to the bodies of persons who died from COVID-19. WHO also emphasizes that the dignity of the dead, their cultural and religious traditions, and their families should be respected and protected throughout.




From the above regulations on death body management, it is clear that it is the Government’s own case that neither the burial nor the cremation poses any threat of spreading of Covid-19. Of course, the regulations in the nature of precautionary measures prohibit the kissing and hugging of dead bodies. Also, a congregation of more than 20 people is banned so that a proper social distancing, which is one the key to containing the virus, is maintained.

In this light, the Bombay High Court’s decision as referred above aptly notes the absence of any evidence that Covid-19 infection may spread to living human beings from the cadaver of any suspected/confirmed Covid-19. Thus it sees no reason to deprive the dead of the last right, i.e., a decent burial according to his/her religious rites.

The argument of public health as an exception to freedom of religion, therefore, stood adequately dealt by the Bombay High Court in the case referred above. And the Chief Justice Dipanker Gupta who authored the judgment rightly negated the argument that burial risks the spread Covid-19. More as per the government’s own guidelines cremation and burial can continue to be performed in a safe manner.

 After the Covid-19 lockdown, the cases of rampant violation of the right of the dead are coming into light. To deny a dead a decent burial or funeral is not only a violation of human rights but also a sad commentary on the state of affairs in our country. The gloomy videos and pictures show that death is no end to the agony. Several High Courts have rightly expressed their anguish at the blatant violation of the right of a dead and have reiterated this necessary existence even in times of a pandemic. Governments and society need to be extra sensitive in protecting the rights of the dead and to ensure that the dead bodies are accorded decent last rites. This is the least expected of a welfare state.


(Paras Nath Singh is a Delhi-based advocate).

Note: The views expressed are personal


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