Dignity Of The Departed - Posthumous Right To Dignity And Justice
Author: LawSphereX
Category: Constitutional & Human Rights
Published:
Updated:
DIGNITY OF THE DEPARTED: POSTHUMOUS RIGHT TO
DIGNITY AND JUSTICE Advocate Rishita Mall, Law Graduate from Campus Law Centre, University of Delhi)
ABSTRACT
“A civilization is measured by how it treats its weakest members”1. Upon demise, a person’s identity is reduced to that of a “body”. A society which respects the deceased’s rights undoubtedly has better standards of morality and humanity. This article emphasizes upon how little we have done in terms of securing the rights of the dead. It explores the importance of the said rights through a multi-disciplinary lens. Posthumous rights include a variety of rights from inheritance to reputation, privacy, publicity, intellectual property rights and, even posthumous reproduction. This article focuses on a dead body’s right to human dignity and, in case of unlawful death, the deceased person’s right to justice. This article examines the legal provisions in India, the precedents which fill the lacunae in them and, international law on the subject.
It also looks into the aspect of caste and access to crematoriums and burial lands. The article explores rights of the dead which must be legally recognized, and the need for a sentencing policy which recognizes the right against torture and reduces the uncertainty in capital punishment cases, to ensure that crime and punishment are proportionate. While law is not a preventive or ultimate solution, it certainly does shape public’s trust and their sense of security. Keywords: Posthumous legal rights, rights of the dead
1 a quote often attributed to Mahatma Gandhi
INTRODUCTION
The frequency of crimes where the body is dismembered (and even cooked/refrigerated), mutilated, burnt with fire or acid, flushed, thrown in the gutter or dumping ground, or where there were signs of torture before death and inhuman treatment of the dead body, have relatively increased. The proposition that such barbarism was always there and it is their reporting that has increased, is like turning a blind eye towards the reality. We are certainly living in a very dark phase of human existence. It cannot be seen from the narrow perspective of “causing disappearance of evidence of offence”2 alone. Being handed over a body that is mutilated or dismembered makes it nearly impossible for the family to come to terms with reality, and to process grief. Then, there are instances of necrophilia and cannibalism.
Another issue is of hurried cremations in case of unnatural deaths, which deprives the dead of their right to justice, as crucial forensic evidence is lost. The need of the hour is to prevent the society from slipping into a darker phase. One part of the solution has to come from the society; the other part has to come from law, to restore a sense of security in the public. Importance of Posthumous Rights to Dignity and Justice: Looking through a Multi- Disciplinary Lens The fear of death is perhaps more about how it will ensue. The next concern is whether one’s mortal remains will be treated with dignity, and disposed off with due regard to one’s religious beliefs and wishes.
There are several aspects of this, which show the immense significance this right has: Ø The Legal Aspect: Human rights are not restricted to the life of the person, but extend to the rights of the dead body as well. This is clear from various legal provisions under municipal and International Laws and, judicial decisions discussed in this article. No society is truly civilized if it cannot ensure and uphold such basic right of dignity for the dead. Rights of the dead are intrinsically connected with the rights of those who are still living. How one’s mortal remains are treated today, give others a glimpse of what the future holds for the humanity and society at large. Ø The Socio-Cultural Aspect: In the Indian Context, we live in a pluralistic society. The
2 Section 238 of the Bharatiya Nyaya Sanhita, 2023
religious profile of the populace as depicted by the 2011 Census3, shows that 79. 8%, 1. 7%, 0. 7% and 0. 4% of the population adheres to Hinduism, Sikhism, Buddhism and Jainism respectively, wherein the mortal remains are primarily disposed of by cremation. On the other hand, 14. 2% and 2. 3% of the population follows Islam and Christianity respectively, wherein the dead bodies are disposed of primarily by burial. About 0. 7% were from Other Religious Persuasions. In case of 0. 2%, religious identity was not stated. As one advances in age, regardless of whether one is a theist or atheist, religion has some influence on them and shapes their expectation about their ultimate farewell. The least that can be said is that everyone expects that their mortal remains will be treated with respect.
Spiritual beliefs related to salvation, after-life, re-incarnation, repeated cycles of life and death, make it important for a person that they are given all their last rites as per their culture, traditions and religious practices. On the other hand, it is the right of the survivors to be able to perform all the last rites and discharge their religious obligations. Access to cremation facility or burial grounds is often restricted for the marginalized. Ø The Medico-Legal Aspect: The Mortuaries in hospitals across the Country are not supplied with adequate resources and materials to handle and preserve the bodies properly or facilitate post-mortem, and forensic science has not received due importance. There is no uniform Standard Operating Procedure for medico-legal cases in non-emergency situations.
4 The National Human Rights Commission’s (“NHRC”) “Advisory for Upholding the Dignity and Protecting the Rights of the Dead”5 and the Hon’ble Supreme Court’s guidelines in a suo motu writ6 during COVID Pandemic, were to address the unprecedented health emergency situation. There are guidelines on 3 Press Information Bureau, “RGI releases Census 2011 data on Population by Religious Communities” dated 25. 08. 2015, https://pib. gov. in/newsite/printrelease. aspx? relid=126326#:~:text=Total%20Population%20in%202011%20is,St ated%200. 29%20crores%20(0. 2%25). 4 Khilji S, Nigam M,Nigam K. , “Variation in Resource Supply of Mortuary for Autopsy at Tertiary Care Center – A Nation-Wide Survey”, Vol. 46 No. 1 (2024): Journal of Indian Academy of Forensic Medicine ( Jan-Mar ) 2024, https://jiafm. in/index.
php/jiafm/article/view/599/561 5 National Human Rights Commission, “Advisory for Upholding the Dignity and Protecting the Rights of the Dead”, May 14th 2021, https://nhrc. nic. in/sites/default/files/NHRC%20Advisory%20for%20Upholding%20Dignity%20%26%20Protect ing%20the%20Rights%20of%20Dead. pdf 6 In Re : The Proper Treatment of COVID 19 Patients and Dignified Handling of Dead Bodies in the Hospitals etc. Suo Motu Writ Petition (Civil) No. 7/2020 certain specific aspects like videography of post-mortem examination in certain cases, but there are no comprehensive guidelines covering all aspects. In 2019, emphasizing upon the absence of post-mortem centres in private medical colleges and the consequent effect on criminal cases, a demand was raised in the Parliament, to make functioning of post-mortem centre mandatory for the medical colleges7.
Early in the same, year a question was raised as to whether the Law Commission of India had been asked to prepare a report on laws related to post-mortem examination or autopsy in the Country. At the time the Law Commission had been tasked with reviewing the Criminal Laws, but no special reference was made to it in this regard. 8 Given that more than 80% of the population follows the method of cremation for disposal of dead bodies, the opportunity to exhume and conduct another autopsy, does not exist. After the enforcement of the Bharatiya Nyaya Sanhita, 2023, Courts have raised concerns over the availability of forensic experts, laboratories and infrastructure in the country. 9 There is another aspect relating to medical education.
While on one hand Medical Institutes are facing shortage of cadavers, on the other hand ethical questions such as the place from which cadavers are sourced, consent of the person before his/her death, etc. arise. Ø The Economic Aspect: The degree and rate at which surge in violent crimes impacts the economy, may be different in different areas. In metropolitan and cosmopolitan areas, which offer good education and career opportunities and better access to basic amenities, people might not readily migrate out. There may be temporary impact on
7 Dr. Vikas Mahatme, Former Member of Rajya Sabha, “Demand to make functioning of post-mortem centre
mandatory for the medical colleges”, July 4th 2019, “Parliamentary Debates” pg. 488 (Hindi) and pg. 533 (English), https://cms. rajyasabha. nic. in/UploadedFiles/Debates/OfficialDebatesDatewise/Floor/249/F04. 07. 2019. pdf 8 Shri Mahesh Poddar, Former Member of Rajya Sabha, “Written Answers to Unstarred Questions”, February 12, 2019, “Report on Laws Related to Post Mortem Examination”, Question No. 1035, pg. 271-272, https://rsdebate. nic. in/bitstream/123456789/697651/1/IQ_248_12022019_U1035_p271_p272. pdf 9Srinjoy Das, “BNSS Mandate For Forensic Examination Puts Pressure On Existing Labs : Calcutta High Court Asks Centre To Notify NIBMG As CFSL”, Livelaw, July 4, 2024, https://www. livelaw. in/high-court/calcuttahigh-court/bnss-mandate-for-forensic-examination-puts-pressure-on-existing-labs-calcutta-high-court-askscentre-to-notify-nibmg-as-cfsl-262308 investment.
In comparatively under-developed areas, the trend to migrate out may see an upward shift more quickly. For a Country as a whole, foreign investment and trade definitely suffers as an economy with an over-burdened justice system does not offer ease of doing business10. High crime rate is also a result of prevailing economic conditions. Ø The Public Health & Environment Aspect: Right to have decent last rites is an aspect of right to dignity of the dead body, and has been upheld by the Courts in India. However the same cannot be said about the right to have last rites as per religious practices. On account of difficulty in identification or over-riding public health concern, religion might have to take a back seat. For instance in “The Surat Parsi Panchayat Board v.
Union of India”11 the Gujarat High Court disallowed the Petitioners to observe their traditional system of last rites called “Dokhmenashini” during COVID
19 Pandemic. However later the Petitioners and the Respondent agreed upon a Protocol
and Standard Operating Procedure, and the settlement was recorded before the Hon’ble Supreme Court12. Response to environmental concerns rarely include discussion around sustainable methods of performing last rites, as it may be seen as impinging upon the rights of the dead. Unlike public health emergencies, environmental degradation does not have an immediate impact. Environment is a global concern. Globally, 61. 65 million people died in 202313. In India this number was 9. 51 million for the same year14. Given the pluralistic society we live in, coupled with difference in level of awareness and degree of rigidity, right to have last rites as per religious traditions, is inextricably 10 Pranav Raj & Siva Reddy Kalluru, “Does crime impede economic growth? An evidence from India”, April 9th 2023, Cogent Social Sciences, Taylor & Francis Online, https://www. tandfonline. com/doi/full/10.
1080/23311886. 2023. 2196814#d1e203
11 The Surat Parsi Panchayat Board v. Union of India C/SCA/7585/2021,
https://www.livelaw.in/pdf_upload/rsca75852021gjhc240263592021523072021-1-397268.pdf
12 The Surat Parsi Panchayat Board v. Union of India CA 1067/2022,
https://main.sci.gov.in/supremecourt/2021/25324/25324_2021_34_35_33136_Judgement_04-Feb-2022.pdf
13 Our World in Data, Source
UN, World Population Prospects (2024), https://ourworldindata.org/explorers/population-anddemography?country=~OWID_WRL&hideControls=false&Metric=Deaths&Sex=Both+sexes&Age+group=Tot al&Projection+Scenario=None
14 Our World in Data, Source
UN, World Population Prospects (2024), https://ourworldindata. org/explorers/population-anddemography? hideControls=false&Metric=Deaths&Sex=Both+sexes&Age+group=Total&Projection+Scenario= None&country=~IND connected to right to dignity, from the society’s point of view. Environmentally better alternatives such as electric crematoriums, burial in bio-degradable caskets or without a casket are not very common. However, electric crematoriums have gained some acceptance over the years. Considering the significance of the matter, one might wonder why it hasn’t received the attention it warrants. One of the reasons perhaps is that it is not an issue that hampers our day to day life, as individuals. Another reason could be that the underlying religious and spiritual concerns are limited to one’s own family.
Unless politicized, we do not look at it as something that concerns the society at large. Corruption and lack of empathy in people in the system, is the elephant in the room that is ignored while devising solutions. There is also a caste angle, as funeral work is still a hereditary occupation which exposes the people of these castes to social stigma. Despite performing an obligation that carries such religious and spiritual significance, they are considered “untouchables”. Ironically, their own access to crematoriums for offering last rites to their kith and kin is limited. Municipal Corporations do undertake funeral work of un-identified bodies, yet mortuaries are over-crowded. Sometimes NGOSs15 and even individuals16 step in to perform last rites, but these instances are few. In all these cases some presumption has to be made regarding the religion of the deceased.
A Look at the Statistics: In 2015, National Crime Records Bureau (“NCRB”) released the “Number of Un-Identified Dead Bodies Recovered and Inquest Conducted During 2015”17. As many as 34,592 bodies were un-identified across the Country, with Maharashtra accounting for the highest (6,185) followed by Tamil Nadu (3,739), Karnataka (3,533), Uttar Pradesh (3,409), West Bengal (3,086) and Delhi (3,063). The later reports by the NCRB do not include this head. The situation in a public health crisis like the COVID Pandemic, natural disasters and, mass 15Shalaka Shinde, “Pune NGO gives respectful last farewell to 50 unidentified people, as per Hindu religious traditions”, Hindustan Times, October 9th 2018, https://www. hindustantimes. com/pune-news/pune-ngo-givesrespectful-last-farewell-to-50-unidentified-people-as-per-hindu-religious-traditions/storycIeTRZn4bg4AJoNWjeqAEJ.
html 16 Amrit Dhillon, “Last rites for Delhi’s forgotten: the woman who cremates strangers”, The Guardian, February 13th, 2024, https://www. theguardian. com/global-development/2024/feb/13/delhi-india-unclaimed-bodies-lastrites-woman-cremations-for-strangers 17 National Crime Reports Bureau, “Crime in India, 2015 Statistics”, “ Number of Un-identified Dead Bodies Recovered and Inquest Conducted During 2015”, https://www. ncrb. gov. in/uploads/2022/July/11/custom/crimein-india/Table-3. 6_2015. pdf killings/ genocide during communal violence is worse. There is no official data on the number of incidents where bodies were found dismembered or mutilated. Legal Provisions in India: Apart from the COVID Pandemic phase, there have been sporadic instances of rights of the dead being brought up in the Parliament18 or State Legislature.
Some Central and State provisions have been discussed herein under: A. Central Provisions:
1 Article 21 of the Constitution of India
21. “Protection of life and personal liberty.— No person shall
be deprived of his life or personal liberty except according to procedure established by law.” Although “person” is normally confined to existing persons, the Apex Court has interpreted Article 21 as applicable to dead persons in a limited sense.19
2 Section 94 of the Bharatiya Nyaya Sanhita, 2023
94. “Concealment of birth by secret disposal of dead body.—
Whoever, by secretly burying or otherwise disposing of the dead body of a child whether such child die before or after or during its birth, intentionally conceals or endeavours to conceal the birth of such child, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”
3 Section 238 of the Bharatiya Nyaya Sanhita, 2023
238. “Causing disappearance of evidence of offence, or giving
false information to screen offender.—Whoever, knowing or
18 Supra note 7 & 8
19 Ramji Singh @ Mujeeb Bhai v. State of U.P. & Ors, 2010 (PIL) No.- 38985 of 2004)
having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false shall,— (a) if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; (b) if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; (c) if the offence is punishable with imprisonment for any term not extending to ten years, be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both.
Illustration A, knowing that B has murdered Z, assists B to hide the body with the intention of screening B from punishment. A is liable to imprisonment of either description for seven years, and also to fine. ” Two scenarios may be looked into in this context. The first is where the murder himself has caused disappearance of the corpus delicti. In such a case there will be an additional charge under the above provision, and perhaps the act of causing disappearance, depending upon the means adopted, may qualify as an aggravating factor while deciding the sentence. The other scenario is where a person has only assisted in causing disappearance. The punishment laid down in the above, and related provisions discussed below, would prove to be inadequate where the body is dismembered, mutilated, burnt, etc.
4 Section 301 of the Bharatiya Nyaya Sanhita, 2023
301. “Trespassing on burial places, etc.—Whoever, with the
intention of wounding the feelings of any person, or of insulting the religion of any person, or with the knowledge that the feelings of any person are likely to be wounded, or that the religion of any person is likely to be insulted thereby, commits any trespass in any place of worship or on any place of sepulchre, or any place set apart for the performance of funeral rites or as a depository for the remains of the dead, or offers any indignity to any human corpse, or causes disturbance to any persons assembled for the performance of funeral ceremonies, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.”
5 Section 315 of the Bharatiya Nyaya Sanhita, 2023
315. “Dishonest misappropriation of property possessed by
deceased person at the time of his death.—Whoever dishonestly misappropriates or converts to his own use any property, knowing that such property was in the possession of a deceased person at the time of that person’s decease, and has not since been in the possession of any person legally entitled to such possession, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine, and if the offender at the time of such person’s decease was employed by him as a clerk or servant, the imprisonment may extend to seven years.”
6 Section 351 of the Bharatiya Nyaya Sanhita, 2023
351. “Criminal intimidation.—(1) Whoever threatens another
by any means, with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation. Explanation.—A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section.”
7 Section 356 of the Bharatiya Nyaya Sanhita, 2023
356. “Defamation.—(1) Whoever, by words either spoken or
intended to be read, or by signs or by visible representations, makes or publishes in any manner, any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person. Explanation 1.—It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.”
8. Necrophilia has never been recognized as an offence in such terms. Section 301 of
the Sanhita includes the act of “offering indignation to human corpse”, but the punishment under that provision is not commensurate with the crime. Moreover, the intention to wound someone’s feelings or insult religion would have to be proved. As the term “woman” means a “female human being of any age”20, the
20 Section 2(35) of the Bharatiya Nyaya Sanhita, 2023
provisions dealing with rape ex facie contemplate a living woman. Although, it may be argued that a corpse is after all of a human and is regarded as being the age at which the person died, the Karnataka High Court has held otherwise in Rangaraju @ Vajapeyi vs. State Of Karnataka (“Rangaraju case”). 21 Section 377 of the erstwhile Indian Penal Code, 1860 penalized “unnatural offences” but contemplated a situation where the offender had carnal intercourse against the order of nature with any “man, woman or animal”. In the Rangaraju case mentioned above, the Karnataka High Court opined that the provision should be amended to include the corpse of a man, woman or animal. 22 The Bharatiya Nyaya Sanhita, 2023 has completely abolished this provision.
While the Delhi High Court23 has granted the Centre 6 months to address the lacunae, which leaves even non-consensual unnatural sex outside the purview of penal law, the Supreme Court24 refused to entertain a PIL in this regard while granting liberty to the Petitioner to make a representation to the Central Government.
9. Cannibalism is not expressly included in the penal law. There are at least two
scenarios that can be looked into. The first is where the person who caused death also consumed the body. In such a case the person would be convicted for homicide, and the attempt or act of cannibalism would be an aggravating factor while determining the ultimate sentence.25 The second scenario is where the cannibal is not the person who caused death. The penal laws do not have any specific provision in this regard. In such a case, one can at best rely on S. 301 of the Bharatiya Nyaya Sanhita, 2023 (an additional charge may be framed under this provision in the first scenario as well). However as already mentioned above, even though this may fall
21 Rangaraju @ Vajapeyi v. State of Karnataka 2023 SCC Online Kar 23
22 Ibid.
23 Prashant Jha, “Delhi High Court gives Centre 6 months to address exclusion of 'unnatural offences' in BNS”, August 28th 2024, Bar and Bench, https://www.barandbench.com/news/delhi-high-court-centre-6-monthsexclusion-unnatural-offences-bns 24 Debayan Roy , “Supreme Court refuses to entertain PIL challenging exclusion of 'unnatural offences' in BNS”, October 14th 2024, Bar and Bench, https://www.barandbench.com/news/supreme-court-refuses-pilchallenging-exclusion-unnatural-offences-inbns#:~:text=The%20BNS%20replaced%20the%20IPC,unnatural%20sex%22%20under%20the%20BNS.
25 State of Maharashtra v. X, 2024 SCC OnLine Bom 3131
https://www.scconline.com/blog/post/2024/10/04/bomhc-confirms-death-sentence-of-man-who-killed-intendedto-eat-his-mother-cannibalism/ within the ambit “offering indignation to human corpse”, the intention to wound someone’s feelings or insult religion would have to be proved, and the punishment under the said provision is inadequate. Clearly, the legislature neither had necrophilia nor cannibalism in mind, when legislating this provision.
10. Transplantation of Human Organs and Tissues Act, 1994 (THOTA) aims to
ensure ethical practices in organ donation and transplantation while preventing illegal trade in human organs. It also covers posthumous organ donation and transplantation which requires authorization by the family members. The organs are removed following certain ethical standards. B. Provisions in States:
1 Anatomy Acts
In India different States have their own Anatomy Acts, regulating inter alia, voluntary donation of cadavers for the purposes of anatomical research. These Acts have been enacted at the State level so that local religious beliefs and cultural practices can be taken into account.
2 The Rajasthan Honour of Dead Body Act, 2023 (Act No. 21/2023)26
Some noteworthy provisions of the Act have been discussed herein under: a. Right to Last Rites: The Act recognizes a human dead body’s right to decent and timely last rites according to the known and prevailing tradition or custom of the community or religion [Section 3]. It would be pertinent to note that the provision begins with a non-obstante clause, perhaps to save instances where bodies are preserved for medical education or for medico-legal purposes. b. Responsibility to Perform Last Rights: The Act recognizes that primarily, it is the responsibility of the family of the deceased to perform the last rites as soon as possible, as per the tradition or custom of the community or religion to which the deceased belonged.
It would be pertinent to note that performance of last rights has been recognized as the responsibility or “liability” (the term used in the Act) of the family members, and not their right. Under certain
26 The Rajasthan Honour of Dead Body Act, 2023 (Act No. 21/2023),
https://prsindia. org/files/bills_acts/acts_states/rajasthan/2023/Act21of2023Rajasthan. pdf circumstances dealt with under the Act, the public authorities have been empowered to perform the last rites. c. Prohibition of Remonstration and Powers of Police Officers and Magistrates: • No Remonstration: The family members can neither use, nor consent to use of the dead body for remonstration, i. e. preventing the last rites of the dead body by way of any protest, disobedience, agitation, provocation etc. for raising demands [Section 6 r/w Section 2(1)(h)]. Sections 17 and 18 punish such remonstration with imprisonment upto 2 years and fine (in case of family member) and with imprisonment of not less than 6 months but which may extend to 5 years and fine (in case of any other person).
• Power of the Police Officers and Magistrates: Police Officers and Magistrates have been given wide powers to take possession of the dead body to prevent remonstration, and even conduct the last rites, after providing an opportunity to the family members for the same. As remonstration is an offence under this Act [Sections 17 and 18], the Officer In-Charge of the Police Station must also send an occurrence report (Section
176 of the Sanhita) where such remonstration has been conducted. This will
prevent cover up by the administration. However, where the body has been taken in anticipation that an unlawful assembly or family is likely to use it for remonstration, there is scope to avoid judicial monitoring. The provision does not address a situation where the administration acts malafide and hurriedly or forcefully cremates27 28 or compels the family to cremate the body to avoid proper forensic investigation in medico legal cases. 27 Hathras alleged Gangrape and murder case, suo motu cognizance by High Court of Allahabad regarding cremation of the deceased without family’s consent, https://drive. google. com/viewerng/viewer? url=https://www. livelaw. in/pdf_upload/pdf_upload-382283. pdf 28 Sweety Kumari, ”Kolkata doctor rape-murder: Victim’s family allege forced cremation, police bribery”, Indian Express, September 6th 2024, https://indianexpress.
com/article/cities/kolkata/kolkata-doctor-rape-murdervictime-family-police-bribery-forced-cremataion-9551669/ d. Storage, Maintenance of Dataset and Disposal of Unclaimed Dead Body: These provisions are aimed at delaying decay of the body, storage of the body in a dignified manner, videography and photography of post-mortem examination, protection of genetic data information, digitalization of data and confidentiality of the same. This enables identification in future and re-opening a cold case if there is a breakthrough in the case. The State Government shall prescribe the details by rules.
2 The Haryana Honourable Disposal of Dead Body Bill, 2024
This Bill was very similar to the “The Rajasthan Honour of Dead Body Act, 2023”. It was however withdrawn as the Opposition in the State pointed out that the reason for remonstration may be that the family does not feel heard, and that the Act must make provisions for addressing the family’s grievance. Moreover, it was also pointed out that enabling a police officer to take possession of the dead body even on the basis of “personal knowledge” i.e. without any other source of information could be misused. Section 7 of the “The Rajasthan Honour of Dead Body Act, 2023” is also worded in the same manner. Judicial Opinion: The Constitutional Courts have time and again interpreted the provisions of the Constitution in such a way as to accommodate the rights of the dead. Some notable judgments and orders have been stated herein below:
1 Pt. Parmanand Katara, Advocate v. Union of India & Anr29
While dealing with a matter where the method of execution of death sentence under the Punjab Jail Manual was challenged as inhuman and violative of Article 21 of the Constitution of India, the Apex Court observed as under: “We agree with the petitioner that right to dignity and fair treatment under Art.21 of the Constitution of India is not only available to a living man but also to his body after his death.”
29 Pt. Parmanand Katara, Advocate v. Union of India & Anr., (1995) 3 SCC 248
2 Ashray Adhikar Abhiyan v. Union of India30
In this case, the Apex Court treated a letter as a writ petition wherein the issue of decent burial/cremation of people living and dying in street situations was raised. Considering the expanse and population of the Country and the already burdened system, the Court did not accept all the recommendations proposed by the Petitioners. However, the Court called for an affidavit from the concerned authorities and satisfied itself that a system was in place to deal with such situations. This shows that the right of decent burial/cremation is recognized.
3 S. Sethu Raja v. Chief Secretary31
In this case, the Petitioner sought orders directing the appropriate authorities to make arrangements for bringing his son’s dead body from Malaysia, so that his last rites could be conducted in India. Although India had not ratified the “International Convention on the Protection of the Rights of All Migrant Workers and the Members of their Families, 1990 “ at the time, the High Court of Madras applied the principle that unless there is anything to the contrary in the municipal law, the principles of international law can be applied in domestic cases. Article 71 of the said Convention provides as under: “States Parties shall facilitate, whenever necessary, the repatriation to the State of origin of the bodies of deceased migrant workers or members of their families. ” Referring to the Apex Court’s judgment in “Pt. Parmanand Katara, Advocate v.
Union of India & Anr”32 the Court observed that the right to human dignity is not restricted to a living human being, but available even after death. Taking note of the fact that the petitioner was poor, the Court opined: “Therefore, in my considered view the State has an obligation under such circumstances, especially in view of the indigent circumstances in
30 Ashray Adhikar Abhiyan v. Union of India, 2002 (W. P. (C) 143 of 2001)
31 S. Sethu Raja v. Chief Secretary, 2007 (W.P. (MD) No. 3888 of 2007)
32 Supra note 29
which the petitioner is placed, to arrange for bringing the body of the petitioner's son to India from Malaysia.”
4 Ramji Singh @ Mujeeb Bhai v. State of U.P. & Ors33
While dealing with a PIL drawing the Court’s attention to the pathetic condition in State Government run Hospital’s mortuaries, the Allahabad High Court held: “We thus find that the word and expression 'person' in Art. 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 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 postmortem or for any scientific investigation, medical education or to save the life of another person in accordance with law, the preservation of the dead body and its disposal in accordance with human dignity. ”
5. Lakshmikanta Lagar & Ors. v. State of West Bengal & Ors. Cal (2021)34
In this case the High Court of Calcutta while dealing with a plea seeking installation of “electric chulli” for an area inhabited by a marginalized community made the following observations: “Any unit of governance guided by the principles of the Constitution, particularly, the Constitutional values and the cardinal human values embedded in it through the doctrine of dignity contained in its Preamble would have definitely done what ought to have been done for the people even without any judicial order. We say so in view of the fact that the writ petition has come up since no due action was taken in
33 Ramji Singh @ Mujeeb Bhai v. State of U.P. & Ors, 2010 (PIL) No.- 38985 of 2004)
34Lakshmikanta Lagar & Ors. v. State of West Bengal & Ors. Cal (2021) spite of requests. If the District administration and the Local Selfgovernment Institutions as well as the Development Authorities do not have the ability to foresee the requirement of crematorium, we do not think that there can be any development through these institutions except to fill the belly of those who are administering those systems.” This observation is crucial in the context of accessibility to crematoriums for the marginalized. This issue exacerbated during the pandemic, but existed prior to that as well.35 36
6. Jebin Joseph v. State of Kerala Ker (2024)
In this case, the Hon’ble Kerala High Court while hearing a plea filed by the live-in partner of the deceased for release of his deceased partner's body from the hospital, observed as follows while passing an interim order37: “I believe that a human being like any of us have a right beyond our death over our body...I am speaking for him (deceased) now. I am treating him as a person who would have control over his body had he been alive. Now the fundamental prerequisite is that the mortal remains is dealt with dignity and that too quickly. You cannot keep it pending forever. Now if there is no legal impediments in conducting the inquest and post mortem being done, I would require that to be done and the report to be placed before the Court.”
7. In a case the Hon’ble High Court of Allahabad38 while taking suo moto cognizance on
the basis of a newspaper report, stating that the skeletal remains of a woman had been 35Aarti Dhar, “Discrimination even in death at Rajasthan crematoriums”, The Hindu, September 14th, 2014, https://www. thehindu. com/news/national/other-states/discrimination-even-in-death-at-rajasthancrematoriums/article6408302. ece 36Karal Marx, “Denied Access to Crematorium, Dalits ‘airdrop’ Dead in Tamil Nadu, Times of India, August 22nd , 2019, https://timesofindia. indiatimes. com/india/denied-access-to-crematorium-dalits-airdrop-dead-intamil-nadu/articleshow/70779016. cms 37 Rubayya Tasneem, “Deceased Person Has Equal Right Over His Mortal Remains As A Living Being: Kerala High Court Observes Orally”, February 7th, 2024 https://www. livelaw.
in/high-court/kerala-high-court/kerala-high-court-right-to-die-with-dignity-dead-personright-over-mortal-remains-248834 38 “Respectful Last Rites Part Of Art. 21: Allahabad HC Takes Suo Moto Cognizance Of Woman’s Skeleton Lying In Morgue For 3 Yrs”, October 29th 2023, Livelaw, https://www. livelaw. in/high-court/allahabad-high- locked up in a morgue in Uttar Pradesh since the past three years, passed an order issuing directions to the State Government and observed: “Prima facie, the right to have one’s mortal remains consigned to elements of nature by the conduct of respectful last rites as per applicable customs also inhere in Article 21 of the Constitution of India. The silence of the dead does not stifle their voice, nor does it extinguish their rights. The dead have their rights, no less tangible than the living. The law asserts their rights, Courts exalt their rights.
The right to reputation is one such right. ” Hence in most cases the Constitutional Court’s have read the legal provisions which ex-facie apply to living beings, as being applicable to their bodies after death. The right to have decent last rites has always been upheld, regardless of the fact that the person may have been a criminal when living. This is important to keep humanity alive in the society at large. Recognition of Rights of Dead Bodies under International Law: Ø International Covenant on Civil and Political Rights39 acknowledges the inherent right of human dignity of all members of the human family, in its preamble. Ø Human Rights Resolution 2005/26: Human Rights and Forensic Science40 underlined the importance of dignified handling of human remains, including their proper management and disposal, along with respect for the needs of families.
Ø United Nation’s Inter Agency Standing Committee's (IASC) Operational Guidelines and Field Manual on Human Rights Protection in Situations of Natural court/allahabad-high-court-respectful-last-rites-article-21-suo-moto-cognizance-woman-skeleton-morgue- 39“International Covenant on Civil and Political Rights”, United Nations Human Rights Office of the High Commissioner, adopted on December 16th 1966, https://www. ohchr. org/en/instrumentsmechanisms/instruments/international-covenant-civil-and-political-rights
40 “Human Rights Resolution 2005/26: Human Rights and Forensic Science”, UN Commission on Human
Rights, E/CN. 4/RES/2005/26, 19 April 2005, https://www. refworld. org/legal/resolution/unchr/2005/en/37509 Disaster41: Part II (D. 3) of the said Guidelines suggest that appropriate measures should be taken to collect and identify mortal remains and facilitate their return to the next kin. While recognizing the right to dignity and to have last rites as per traditions and customs, the guidelines suggest that cremation should be avoided, to keep the possibility of future recovery and identification open. The guidelines also call for measures to protect funerary sites from desecration and disturbance. The family’s rights to seek forensic investigation and recover and dispose of the dead bodies as per religious or cultural beliefs have been acknowledged.
Ø The Fourth Geneva Convention (International Humanitarian Law)42: • Article 16, paragraph II, requires that those killed or wounded in a war be protected against ill treatment, subject to military considerations. • Article 130 deals with matters of burial and cremation of internees who die during internment. Providing an honourable burial, according to the deceased internee’s religion (if possible) and, respecting, properly maintaining and marking the graves for future recognition have been recognized as basic principles. Special provisions have been made in case of cremations. Ø Article 4 of the International Law Commission's “Draft Articles on the Protection of Persons in the Event of Disasters”43 states that the dignity of the human person shall be respected and protected at the time of disasters, which inter alia causes widespread loss of life.
Ø Article 3(a) of the “Cairo Declaration on Human Rights in Islam” (1990)44 prohibits 41Inter Agency Standing Committee's (IASC) - “Operational Guidelines and Field Manual on Human Rights Protection in Situations of Natural Disaster”, Part II(D) “PROTECTION OF OTHER CIVIL AND POLITICAL RIGHTS” – (D. 3) “FAMILY LIFE AND MISSING OR DEAD RELATIVES” pg. 55-56, https://interagencystandingcommittee. org/sites/default/files/migrated/2021- 03/Human%20Rights%20and%20Natural%20Disasters- %20Operational%20Guidelines%20and%20Field%20Manual%20on%20Human%20Rights%20Protection%20i n%20Situations%20of%20Natural%20Disasters. pdf
42 IV GENEVA CONVENTION
Relative to the Protection of Civilian Persons in Time of War of 12 August 1949, https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.33_GC-IV-EN.pdf 43“Draft articles on the protection of persons in the event of disasters 2016”, International Law Commission, https://legal.un.org/ilc/texts/instruments/english/draft_articles/6_3_2016.pdf
44 Cairo Declaration on “Human Rights in Islam”, Aug. 5, 1990, U.N. GAOR, World Conference on Human
Rights, mutilation and dismembering of dead bodies during the use of force and in armed conflicts. Ø The Revised United Nations Manual on the “Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions” also known as “The Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016)” (Minnesota Protocol)45 repeatedly emphasizes upon consideration for dignity of the dead while laying down the standards of professional ethics of the investigating agency and medical professionals, or manner of recovery of human remains and conduct of autopsy. Hence International Law recognizes and re-iterates a dead body’s right to human dignity, mostly in specific context of war or natural disasters or unlawful killings.
Proposal for Changes in the Criminal Law and Public Policy: In July 2024, the United Nations Human Rights Council presented a Report titled “Protection of the dead”. 46 One of the challenges that have been identified in the said Report, is the gap between the legal protections for people who die in conflict/emergencies, and those who are killed in peace time. However, the International Guidelines often set the stage for initiatives under municipal law.
Given below are some suggestions that may be incorporated in the general law or as a matter of public policy in the wake of surge in barbaric crimes: Ø A Uniform Protocol/ Standard Operating Procedure in case of Unnatural Deaths for the Police Administration as well as Medical Professionals: The Protocol must go beyond formalities such as requiring family members to sign on standard format of declarations, which rarely leaves them with any choice. The Minnesota Protocol and other International Conventions/Resolutions can be regarded as a guideline in framing such Protocols/Procedures. Although the Minnesota Protocol focuses on human rights http://hrlibrary. umn. edu/instree/cairodeclaration. html#:~:text=(a)%20All%20individuals%20are%20equal,for% 20in%20the%20Shari'ah.
45 The Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016), Office of the United Nations High Commissioner for Human Rights, New York/Geneva, 2017, https://www. ohchr. org/sites/default/files/Documents/Publications/MinnesotaProtocol. pdf 46 “Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Morris Tidball-Binz - Protection of the dead”, Human Rights Council, Fifty-sixth session, 18 June–12 July 2024, https://documents. un. org/doc/undoc/gen/g24/066/26/pdf/g2406626. pdf violations by officials of the State, the proposals regarding the investigation, forensic examination, witness protection, professional ethics and detailed guidelines on certain aspects of investigation can be used as a guideline for homicidal cases in our country. There may be a general protocol and also specific protocols for specific situations.
Ø Framing Laws for Upholding the Rights of the Dead, recognizing them as a distinct category of victim, regardless of caste and other differences. Due regard must be given to their right to justice and, the family’s right to grieve, conduct last rites and know the truth. The Rajasthan Honour of Dead Body Act, 2023, emphasizes more on enabling the authorities to dispose of the dead bodies, than on protecting the rights of the dead. Its provisions penalizing remonstration are unfavorable to those who do not have access to justice. Such laws must aim at preventing cover-ups by authorities, and fixing accountability. The need for recognizing “Necrophilia” and “Cannibalism” as offences under the Bharatiya Nyaya Sanhita, 2023, must be deliberated upon in the Parliament.
As already noted above, there is a gap in law in this regard, and the current provisions do not lay down punishments commensurate with the crime. Ø Sentencing Policy recognizing Right against Torture: Given the uncertainties in outcome of capital punishment cases, the need of the hour is a sentencing policy which enumerates circumstances that qualify as aggravating and mitigating circumstances. Such policy can be incorporated by way of provisos in the penal provisions, treating circumstances such as torture before death, mutilation, dismembering, burning of the dead body or causing death by burning, or any such attempt to destroy the body or make its identification difficult, as aggravating circumstances.
Ø Giving Forensic Science its due Importance: National Law University, Delhi’s Project 39A Report titled “Forensic Science India Report - A Study of Forensic Science Laboratories (2013-2017)”47 highlights several issues in Forensic Science Laboratories (FSLs) like shortage of trained personnel, outdated facilities and equipments, inadequate infrastructure, under-utilized budget allocation, and poor coordination 47 Project 39A, Forensic Science India Report - A Study of Forensic Science Laboratories (2013-2017), National Law University Delhi, https://drive. google. com/file/d/1kNLabwfex5gr6QCNahgPNjlYiiDsDQcq/view between agencies. Recruitments must be made to fill the vacancies, and training and upskilling must be provided from time to time, in line with technological advancements and International best practices.
The infrastructure of FSLs must be upgraded to keep up with the times and the demand of the Bharatiya Nyaya Sanhita, 2023. Post Mortem centres must be made mandatory in all private Medical Colleges. Ø Balancing Rights of Deceased and Medical Education: As every State has their own Anatomy Act, there is no uniformity in provisions regarding voluntary donation of cadavers for anatomical research and therapeutic use. This affects PAN-India collaborative procurement of cadavers. 48 While it is essential to take local customs into account, the shortage of cadavers, affect quality of medical education. Hence, a Central Act laying down uniform procedure and ethical standards will facilitate smoother supply of cadavers.
Such an Act must comprehensively cover all facets of medical education relevant for the purpose: anatomical education, surgical education and practical training in surgery and conducting post-mortems. In order to ensure ethical use, informed consent must be sought from donors, seeking specific consent for all kinds of use that the body can be put to, including photography and display of body parts. 49 Ø A Standard Protocol for Unclaimed Bodies to enable future identification and, disposal of the dead body in a dignified manner with due regard to religious customs (if possible), in a time bound manner.
CONCLUSION
It is time to hear the voice from “the beyond”, so that they can truly rest in peace. Society owes it to the departed that they be treated with human dignity, regardless of difference in caste, community etc. All the personnel involved in re-construction of the crime, are the voice of the dead. The role requires highest integrity and skills. The Judge’s hands must not be tied at the 48 Susai S, Chandrupatla M, Motwani, “Anatomy Acts concerning body and organ donations across the globe: past, present and future with a special emphasis on the Indian scenario.” Anat Cell Biol. 2023 Mar 31, https://acbjournal.org/journal/view.html?doi=10.5115/acb.22.166
49 Sundip H. Charmode, Nishat Sheikh, Satish Kumar Ravi, Simmi Mehra, “Legal Frameworks Upholding
Deceased Individuals’ Rights and Enabling the Use of Cadavers in Anatomy Education and Research: A Systematic Review”, MedRxiv 2023, https://doi. org/10. 1101/2023. 10. 19. 23297292 stage of investigation. When all the doors are closed, it is the Judge who has to become the deceased person’s voice. Investigating and bringing the criminals to justice is not an option, but an obligation of the State. Recent cases of brutal homicides and rapes are not just affecting the sense of security in the society, but also affecting the Nation’s development and economy. The above proposals will go a long way in addressing the gaps in law. However, unless issues of corruption, shortage of personnel, lack of skills, are dealt with, no solution will yield desired results. Fixing responsibility in the laws/regulations itself, acts as a guard to some extent.
Lastly, it must be borne in mind that law offers only a part of the solution; the other part of the solution lies with the society. From home to administration that is responsible for prevention, a lot can be set right to prevent the avoidable tragedies.