Dignified Farewells - The Right Of Deceased Infants To Decent Burial Or Cremation
Author: LawSphereX
Category: General Law
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Updated:
DIGNIFIED FAREWELLS: THE RIGHT OF DECEASED
INFANTS TO DECENT BURIAL OR CREMATION
Rohtash Babu Patel, Advocate, Madhya Pradesh High Court Jabalpur (M.P).1
ABSTRACT
Main aim of this article is to conduct legal research with respect to existing laws in India about the Right of dead under Constitution of Inda along with other laws, rules, and regulations. These articles lay importance of safe burial/cremation of the unidentified and unclaimed infant who lose their life at such a tender age. I.
Introduction: - Commonly it said that “upon birth of human being, his personality is recognised and after his death it ceases to exist. In the eyes of law dead person are not considered as person, thus they have limited rights. Though Indian law protects right to property of unborn child till he has life and is not dead. The Bhartiya Naya Samhita 2023 Section
2 (6) and Section 2 (17) defines “death” and “Life” respectively. The endeavour is to
find out about the existing legal provisions about right to dead for safe burial/ cremation. II.
International Framework: - (a) Geneva Convention (IV) - Article 130 of the fourth Geneva Convention states that the internee dies during the period of interned as honourably buried according to the rites of their religion and that the graves must always be respected, properly maintained, and marked in a way that they can always be recognised.2 (b) UN’s Inter Agency Standing Committee’s Operational Guidelines on protection of persons in situation of Natural Disasters (2011)3.- Article 6 provides for protection of rights and dignity of dead it reads as under: -
1 Advocate, Madhya Pradesh High Court Jabalpur (M.P).
2 The Geneva Convention Act 1960 (Act 6 of 1960) ; E-1970-1960-0007-88740.pdf
3 OperationalGuidelines_IDP.pdf
“A. 6. 1 The mortal remains of those deceased should be collected and identified, to prevent their despoliation or mutilation, and to facilitate the return of the remains to the next of kin. A. 6. 2 If remains cannot be returned – for example, when the next of kin cannot be identified or contacted – they should be disposed of in a manner which will facilitate their future recovery and identification. Cremation of unidentified bodies should be avoided. Instead, they should be stored or buried temporarily, pending future identification and return to families. A. 6. 3 Local religious and cultural practices and beliefs on the disposal of bodies should be considered from the outset. Such disposals should be conducted in a manner that respects the dignity and privacy of the dead and of their family members.
Measures should be taken to protect funerary sites and monuments from desecration or disturbance. A. 6. 4 Family members should be fully informed about the location of grave sites or places where the bodies have been disposed of and should have full access to them. They should be given the opportunity to recover the human remains for reburial or cremation according to their own religious and cultural beliefs and practices, as well as to erect memorials and conduct religious ceremonies as needed. ” III.
Constitutional protection to dead: Judicial Interpretation. - That Indian Constitution is an organic document which preserves the fundamental right of citizen of India. The Indian Courts have consistently interpreted the constitution in a way which protects the life and liberty of person. Although the Right to burial/ cremation is purely a religious matter. A person’s last rites after death are performed according to the belief or religion he professes. The Apex Court in the matter of Sardar Syedna Taher Saifuddin Saheb vs. State of Bombay (1962) 4 while declaring Bombay Prevention of Excommunication Act 1949 as unconstitutional held Head of Dawoodi Bohara Community has power to excommunicate a member from community. It was held a member who is excommunicated from community loses his right to burial in
4 [1962] SCR 2 Supp 496
property maintained by the community. The Apex Court further in the matter of Pt. Paramanand Karata vs. Union of India (1989)5 outlined the duties of medical practitioner/hospital to provide immediate medical support to save life of victim of road accident without waiting for legal formality. Apex Court in the matter of Pt. Paramanand Karata vs. Union of India (1995) 6 while dealing with constitutional validity of Rule 873 of Bombay Jail Manual has held provision to be directory and observed as under “We agree with the Petitioner that the right to dignity and fair treatment under Article 21 of the Constitution of India is not only available to living man but also to his body after his death” The NGO Ashray Adhikar Abhiyan has written a letter to Chief Justice of India, which was taken up as letter as Writ Petition as Ashray Adhikar Abhiyan Vs Union of India (2002)7.
The Apex Court has recognised right to decent burial of homeless deceased persons to have a decent cremation according to one’s religious customs. It held that it is duty of State to ensure that decent cremation is received by dead person. Allahabad High Court in the matter of Ramji Singh @ Mujeeb Bhai Vs. State of Uttar Pradesh (2009)8 held that the word and expression “person” in Article 21 includes a dead person in limited sense and right to life with dignity should be extended in such a manner that his dead body is given respect which he deserved Patna High Court in the matter of Vikash Chandra @ Guddu Baba v.
The Union of India & Ors(2008)9 took cognizance of disposal of dead bodies in river ganga without stitching after post-mortem in unclaimed and unidentified bodies by Patna Medical college, the Court was pleased to hold it is expected from the Hospital Staff and State Officials that disposal of unclaimed and unidentified dead bodies would be done in accordance with law with utmost respect to the deceased and in case it is verifiable, the last rites should be in accordance with the known faith of the deceased. Madras High Court in the matter of S. Sethu Raja v. The Chief Secretary,
5 [1989] 3 SCR 997
6 (1995) 3 SCC 248: [ Writ Petition (Cri) 827 of 1991, (Supreme Court, 19 January 1995)
7 [2002] 2 SCC 27
8 2009 SCC Online All 310:2009 5 All LJ 376
9 2008 SCC OnLine Pat 905: (2008) 2 PLJR 127
Govt of Tamil Naidu (2007)10 addressing the petition filed by parents to seek dead body of their son who was murdered in Malaysia, The Court was pleased to allow the petition and held “The fundamental right to life and personal liberty guaranteed under Article 21 of the Constitution has been given an expanded meaning by Judicial pronouncements. The right to life has been held to include the right to live with human dignity 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. The right to accord a decent burial or cremation to the dead body of a person, should be taken to be part of the right to such human dignity. ” Bombay High Court in the matter of Pradeep Gandhy vs.
State of Maharashtra (2020)11 talking up the challenge to the circular issued by Maharashtra Government allowing burial of all dead bodies in city burial ground, this circular was challenged. The court dismissed the petition and held “we find little reason to deprive the dead of his last rites i. e a decent burial according to according to religious rights”. Calcutta High Court in the matter of Vineet Rai Vs. The Principal Secretary Ministry of Health and Family Welfare (2020)12 the court has recognised the right to decent burial/cremation to Covid-19 infected deceased, it also granted permission to the relative of deceased to perform last rites according to customs and religious belief with protocols of covid-19.
It also casted a duty on the State to give decent burial/ cremation to the unclaimed bodies of covid-19 infected deceased, Thus, to sum up it can be said that there is constitution right to deceased to have decent burial/ cremation. There is not much difficulty in claimed bodies, but real difficulty arises in unclaimed and unidentified bodies. It is very difficult to ascertain the religious belief of an infant who dies in harness and is abandoned by parents and whose religion cannot be ascertained. Let us evaluate existing legal framework on the country on their issue. IV.
Existing Statutory Framework: - (a) Bhartiya Nanya Sanhita, 2023: - There is no explicit provision in the code that
10 W.P.(MD)No.3888 of 2007 {Madras High Court, Madurai Bench, 28-08-2007]
11 2020 SCC OnLine Bom 662
12 2020 SCC OnLine Cal 5479
makes infringement to right to decent burial/cremation as penal offence. Section
30113 make tress pass to place set apart for performance of funeral rites or
depositories for remains of the dead or shows any indignity to any human corpse. It is punishable with term of one year or fine. Section 31514 makes dishonest misappropriation of property possessed by deceased person at the time of his death as punishable offence. Section 35115. - threat to injure reputation of any deceased person in whom the person threatened is interested is within this section, Section 35616. - provides safeguard to the reputation of the deceased, Explanation 1 which is appended to Section 356 makes imputation to a deceased’s person punishable if the imputation would have hurt the deceased’s reputation and the feelings of his family and relatives. However, this right is of the living ascendants and not of a dead person. (b) Transplantation of Human Organs and Tissue Act, 1994.
-The Act 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 the near relatives Earlier making a will to donate the organs was not recognised, but now a person can make a will to donate his organs, it can be either for the purpose of humanity or for research and educational purposes. (c) The Registration of Birth and deaths Act 1969. - The provision of Act casts an obligation upon head of house or person in-charge to report to registrar about the births and deaths occurring in their premise. It even cast duty headmen of village and officer in-charge of police station. 17 Failure to inform about death and birth to the Registrar is made as a punishable with fine of fifty rupees. 18 (d) Bio-Medical Waste Management Rules 1998.
- As per Schedule- I appended to the rules provides the disposal of fetus below the viability period (as per Medical Termination of Pregnancy Act 1971) 19
13 Indian Penal Code 1860,Section 297 (Old)
14 Indian Penal Code 1860, Section 404, (Old)
15 Indian Penal Code 1860, Section
16 Indian Penal Code 1860, Section 499 Explanation 1
17 The Registration of Birth and Death Act, 1969, Section 8 and Section 9
18 The Registration of Birth and Death Act, 1969, Section 23.
19 Bio- Medical Waste (Management and Handling )Rules 1998.
(e) State Legislation of Local Self Government: Article 243G read with Eleventh Schedule and Article 243W read with Twelfth Schedule enables State Government to entrust upon Panchayat and Municipalities to perform power and functions mentioned in the schedule. After Constitution (Seventy- third Amendment) Act 1992, every State have enacted legislation for functioning of Panchayat and Municipalities. This legislation provides the provision for maintenance of burial and crematory grounds. For example, M. P. Municipal Corporation Act, 1956. 20 The M. P. Gram Panchayat (Regulating Places for Disposal of Dead Bodies, Carcasses and other Offensive Matter) Rules, 1998 Allahabad Nager Mahapalika (Regulation of Burial Grounds, Places for Cremation and Electric Crematorium) Bye Laws, 1988 etc.
These Local laws provide for place, its maintenance and manner for disposal of dead bodies, but these legislation, rules/,regulation does not specifically provide for right of dead to dignity and does not provide for any liability for its breach, except approaching the Constitutional Courts. V.
Religious Outlook: - (a) Hinduism: In general, dead body of Hindu is cremated, but the body of infant below three years of age are buried. The practise21according to Garuda Puran infant who died in mother’s womb child up to twenty-seven months is either to be immersed in Ganga or buried.22 The body of saint are also buried and not cremated23 But sometimes dispute as to cremation/burial grounds do arise in Hindu community especially with Dalits.24 (b) Islamic Practise - In Muslim law there is no distinction between child and adult male with respect to mode of giving farewell to dead corpse. Both are buried in grave. 25
20 Section 286 to Section 290.- provides for disposal of dead bodies.
21 Hindu Cremation Procedure During Death Of Children | Hindu Blog
22 Chapter 10, Shlok 91-92; Garun Puran- Saroddha, Geeta Press Publication, Gorakhpur 29th reprint, Samvat 2074. 23 Chapter 10, Shlok 102; Garun Puran- Saroddha, Geeta Press Publication, Gorakhpur 29th reprint, Samvat 2074.
24 Untouchability in Gujarat: Dalit Cremation Denials Expose Deep-seated Caste Struggles
25 1 new message: https: //aboutislam.net/counseling/ask-the-scholar/funeral/funeral-rituals-funeral-prayer-fora-child-how-to-perform-funeral-prob.
(c) Christianity - In Christianity there is no distinction between child and adult male with respect to mode of giving farewell to dead corpse. Both are buried in grave. 26 (d) Jewish - according to Jewish law upon death of an infant and fetus beyond five months are required to be buried27. (e) Parsi - In Parsi law, the funeral of an infant child is conducted with great care and respect, following specific customs and rituals. The body is placed in a consecrated space, often a Dakhma (Tower of Silence), where it is exposed to the elements. This practice, known as "Dokhmenashini," is believed to purify the soul and return it to nature.
28 Thus, it is settled law of the land that the right of the dead to dignity is constitutionally protected and dead person has right to decent burial/cremation as per his religious belief, but this task becomes especially difficult in case of unidentified and unclaimed infants or children, Thus, there has to be a legislation to tackle this problem. VI.
Need for Specific Legislation. - Burial and burial grounds; cremation and cremation grounds are the subject matter of the State List29, but law-making power regarding infants and minors is in concurrent list30. Thus, to get any law enacted and its implementation on pan India basis is a Herculean task. In absence of a any specific legislation with respect to right to dead, many times dead corpse of homeless, abandoned, unidentified persons raise difficulties for the administration as well as members of Non-Governmental Organization working in this filed. According to media reports dead body of infants are often found near bushes, barren field, banks of river. In 2007 Ministry of Women and Child Development asked Municipal Corporation of Delhi to provide decent burial place to the babies of three-
26 Funeral of a Child : https: //justus.anglican.org/~ss/commonworship/funeral/funeralofachild.html
27https://www.rabbinicalassembly.org/sites/default/files/public/halakhah/teshuvot/19912000/dickstein_infant.pdf
28 https://www.sanskritiias.com/current-affairs/parsi-funeraldokhmenashinicustom #:~:text= The
%20process%20of%20cremation%20in, and%20crows%20eat%20the%20body.
29 Constitution of India, 1950, Entry 10, Schedule 7.
30 Constitution of India, 1950, Entry 10, Schedule 5.
year age.31 National Human Right Commission taking note of substantial number of deaths during Covid-19 pandemic issued advisory of Union and State Government for upholding the dignity and protection the Right of the Dead. Wherein emphasis was laid to have specific legislation to protect the right of dead.32 Thus, in view of above strict liability is to be imposed upon persons who breaches right to dignity to dead. 31 No safe burial for kids below three | Latest News Delhi - Hindustan Times[ Last assessed on 08-01-2025] 32 National Human Rights Commission. (2021)). Advisory for upholding the Dignity and Protecting the Rights of Dead. Retrieved from URL https://nhrc.nic.in/sites/default/files/NHRC%20Advisory%20for%20Upholding%20Dignity%20%26%20Protect ing%20the%20Rights%20of%20Dead.pdfL