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Pile-up of bodies during Covid-19: Breach of Right to dignified burial?

Updated: Mar 20


Pile-up of bodies during Covid-19: Breach of Right to dignified burial?

ABSTRACT:

The right to dignified burial/cremation is a basic human right but was violated during the Covid-19 pandemic. The paper traces those cases which involve the issue of cremation in the ambit of the Constitution of India, especially Article 21. The paper analyses different statistics to better understand the lack of what things caused the situation and why the government is not able to keep up with the demands during covid-19. It also analyses different guidelines released by the National Human Rights Commission and the International Convention for a better understanding of the rights of the deceased. It also appreciates India’s effort to recognize the right to decent burial of the dead during the Kargil War and the 26/11 attack. Lastly, the paper also compares the situation of various crematoriums across the globe for a better understanding of the situation in other nations when compared to India. The paper concludes with the brave efforts of India and Indians.

By Shashank Maheshwari

Introduction:

Cremation is considered the final stop for the human body under various religions. Every person in India has a religion, irrespective of his belief because Indian laws do not recognize atheism. For Hindus, fire acts as the gateway to the spiritual world. Hindus believe that the soul of the dead body is evil, “preta” before the creation rituals, but once all the rituals are performed it becomes, a good spirit or “pitr”.  For them, the process of cremation acts as a stage in the process of rebirth.

Muslims believe that death is the day of judgment for them, as their fate of entering eternal Paradise and Hell is decided on this day. Christians follow the same concept of heaven and hell, where hell is the separation from God. For them, a funeral act as a procession to thank the soul of the dead. This right to a dignified funeral has been recognized by the Supreme Court of India under various articles of the Indian Constitution.  Now the question arises, if each and every Indian possesses this basic human right, were they given one, during Covid-19?

Not just hospital beds, families had to wait for death beds too. Almost every cremation ground ran out of space. Reportedly, parking lots were converted into cremation grounds for burning the holy pyre. India’s biggest nightmare of the decade, breached basic human rights laws. The paper discusses the constitutional aspect of these breaches through various case laws and national and international reports, which recognizes the basic human right of cremation. In addition, the paper relies on various secondary data and statistics for a deeper view of the research problem.

What does data say on Covid-19?

According to the Indian Governmental authorities, 5.5 lakh people died because of Covid-19. Astonishingly, World Health Organization (WHO) estimated this number as, almost 10 times the official data; it estimated a total of 47 lakh Covid-19 related deaths. Making it the highest death toll globally. In response, the government alleged WHO of discrepancies in calculations, using different methodologies, and most importantly, working under the pressure of China.

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Irrespective of the allegations, one thing is clear with the statistics that, India went into a pandemic with a faulty understanding of the situation. The pandemic revealed that how and where you lived in India, played important role in the chances of your survival; The health care gaps were wide and open to the public.

Various Evidence suggests that States had purposefully attempted to downplay their Covid numbers. Despite, the suggestions of ICMR and WHO to adopt a liberal definition of Covid-19, states opted for an excessively narrowed definition- “Only people who tested positive for COVID-19 before the death and died with a typical progression of disease in the hospital would be typically counted as COVID death”. The population on the ground saw their hometowns devastated, yet not being represented in numbers, giving the clear indication for under-reporting.

India is a country with one of the lowest levels of government spending on healthcare but with the highest levels of personal out-of-pocket expenditure on health. The lack of calculation mediums of data regarding deaths during the pandemic left the experts fully understand the impact of Covid-19. Many Indians had to experience the worst of government healthcare and worst of the private healthcare too. The lack of data led to a dubious decision regarding the distribution of the Covid-essentials. The National Health Profile, the database related to healthcare in India; majorly counts data from a government hospitals in a country where most people prefer private healthcare over the government. This fact has been stated in the NHP report of 2019. In rural India, where India’s majority population resides; 86% of healthcare providers are from private sector, this gives us a clear indication of the underestimates.

India has just 28 healthcare workers for every 10,000 people, on the other hand, the global threshold is 45 healthcare workers on every 10,000 people; Bihar has just 4 healthcare workers for every 10,000 people. Because of this, healthcare is more expensive in poorer states than in richer states.

India entered into the Pandemic with a faulty knowledge of who falls ill and who needs greater attention. For instance, women lagged behind men in Covid vaccinations, despite being the majority of frontline workers. The poor and the suppressed had to pay the price of miss-counting of data, as most of them were more vulnerable to Covid-19 than the rich, but however, the rich had easy access to Covid testing. Hence, resulting into a sugar-coated mess.

This above analysis clearly describes the ignorance of the administration to learn from the data discrepancies. The situation was such that private channels like covid19india.org were used by news channels to quote data because the official data was underreported. Lastly, during the vaccination drive, the government claimed that only 2-4 people out of 10,000 vaccinated were again being contacted by the Covid virus, however, this data was incomplete as no covid test forms included the column of vaccination for nearly three months, even after the introduction, the changes form could not make it to the ground level.

ARTICLE 21: Zindagi ke sath bhi, Zindagi ke baad bhi…

The Supreme Court of India has supported the right of cremation under various Articles of the Indian Constitution. It has given extensive parameters for Article 21, as in the case of Francis Coralie, where it held that the “Right to life includes basic necessities of life and also the right to carry on such functions and activities as constituting the bare minimum expression of the human self.” Moreover, it the apex Court has taken a grand step by increasing the scope of Article 21, it held that, “right to life in Art 21 does not mean merely ‘animal existence’ but living with ‘human dignity”. Hon’ble court extended this right to the dead person too. Although, the Supreme Court has recognized the Right to Health of public, there is no contemporary ruling, which recognizes the right of health care workers. However, the Legislature had recognized the need for protection for health care workers, the Legislature had passed the Epidemic Diseases (Amendment) Bill, 2020, which states that any act of violence against healthcare personnel through which the personnel has suffered damage, will be punishable with imprisonment for a term of three months to five years and with a fine of Rs. 50,000 to Rs.2,00,000.

The Court has also directly opined that the scope of Article 21 is extended to the right of a person to have a decent burial. Explicitly stating that who interferes in the procedure of this decent burial shall be made liable under Section 297 of The Indian Penal Code, which deals with trespassing on burial places. Moreover, the Supreme Court has also contended that Article 21, the right to live with dignity is extended to the death which covers the aspects of decent death procedure.

Interestingly for preserving the rights of dead, it reiterated its judgement on Right to decent burial and added that it also includes the burial as per the religious rule, under the ambit of Fundamental Right. And this right also extended to the right of decent burial of the homeless deceased, according to their religious beliefs. If the body of deceased is unclaimed or unidentified it is to be performed by the state officials and the hospital staff, inconformity with the religious faith of the dead. In addition, the Supreme Court has ensured that Article 21 is enforced during the straining times of Covid-19 and has held that, no individual can be forced to be injected with covid-19 vaccination. Hence, upholding the right of “Bodily integrity and personal autonomy”.

Lastly, the courts have also ruled that “the State must respect a dead person by allowing the body of that dead person to be treated with dignity.” Justice Sathyanarayanan also mentioned that it would be infringing the dignity of the corpse if the procession of a funeral is disturbed.

Judiciary on covid-19 and the Right to decent burial:

Although there is no comment by the Apex court of India on the cremation of the dead during covid-19, various High Courts have opined in the favor of the fundamental right of decent cremation or burial.

In the case of Pradeep Gandhy v. the State of Maharashtra, a notification was issued by the Greater Mumbai municipal corporation, in which they stated that all the bodies should be cremated in the nearest crematorium irrespective of their religion. The same day, notification was amended and burial too was allowed. This amendment was challenged in the Bombay High Court, the High Court found no substantial reason that, why a body shouldn’t be buried. Hence, so as to respect the religious sentiments behind the burial of a body, it upheld the amendment and allowed burials. Further, the Madras High Court in a suo moto case held that “having an appropriate burial could be a basic right underneath Article 21”.

Vineet Ruia Vs The Principal Secretary, Ministry of Health & Family Welfare, Govt. of West Bengal & Ors; is one of the most laudable judgements by Calcutta on Covid,-19. The High Court dealt with a PIL in which, an issue pertaining to the mismanagement of the Covid-19 situation by the West Bengal Government was raised. The Judges upheld that the right to dignity is not only to a living person but also includes his mortal remains. Irrespective of the cause of death, the body deserve a respectful and solemn burial or cremation and the close relatives also deserves a chance to pay their last respect to the departed soul. It interpreted the phrase, “dignified procedure of death” in an expansive manner and included despoiling of the human remains of a deceased. The body of the deceased should be disposed of as per his religious beliefs. The court went to a deeper extent and termed the right as a delineable part of human rights

Lastly, the Telangana High Court has also remarked that “Even in death, human bodies aren’t being treated with the dignity they deserve” and asked the state government to act accordingly.

NHRC’s take on the issue:

NHRC headed by Retired Supreme Court Judge, Justice Prafulla Chandra Pant, has issued guidelines on the issue of Cremation after taking cognizance of several dead bodies floating in the river Ganga in Bihar and Uttar Pradesh. The guidelines were specifically issued to curb the mismanagement and mishandling of the deaths due to Covid-19.

The Commission pointed out that there is no law in the country for the rights of the dead. However, it cited various Judgements, guidelines by international organizations and the government of India, NDMA and international convention; in order to demarcate the rights of the dead and stating that, “it is the duty of the State to protect the rights of the deceased and crime over the dead body and prepare a SOP in consultation with all stakeholders so that the dignity of the dead is maintained.”

The report was based on various Supreme Court Judgments related to Article 21. For instance, in the case of Parmanand Katara vs Union of India, which recognised the right to life, fair treatment and dignity extend not just to living persons but to the dead also. The commission opined that the law honour’s the rights and interests of the deceased.

The organization also quoted the case of, the Allahabad High Court, which stated that “It is imperative for the state to treat the corpse with dignity, and must only resort to post-mortem if it is a necessity, the high court held. Lastly, it also discussed various other cases which are mentioned above.

It pointed out that despite recognizing the right to dignified burial, there are several instances of its breach during the pandemic. Hence, it has asked for the implementation of its recommendation by the Union Home Ministry within four weeks.

It has given a wide list of recommendations, which includes drafting specific legislation for the rights of the dead, setting up temporary crematoriums, maintenance of a district-wise digital database of the dead, updating the death in all the documents of the dead like Adhar Card, Bank account, etc.

The local administration should ensure the availability of transport for the deceased, levying strict charges against arbitrary hikes in ambulance prices. Directing Hospitals to not retain dead bodies, in the case of pending bill payments. Further, NGOs and CSOs should come forward for performing the last rites of the unidentified or unclaimed bodies in a dignified manner.

There should be no pile-up of dead bodies, electric crematoriums should be promoted and mass burial or cremation should be avoided as it is against the right of the dignity of the dead. Moreover, the staff of the crematoriums/ burial should be provided with PPE kits and vaccines on priority.

Lastly, for the citizens, it requested to report any deaths to legal authorities, to not touch the body of the deceased, and only read religious scripts or sprinkle holy water from a distance.

How other nations handled the bodies of the deceased?

United Kingdom:

UK was also facing a crematorium crisis as it took four weeks for a deceased to get a place for burial. In the grievous situation, the country had to establish a temporary morgue at its two prominent airports, Birmingham and Southampton. The deaths the month of March and April exceeded the death toll of the entire 2019. As there was already a backlog of burials various crematoriums had to undertake multiple burials in one grave. The lack of a central organisation felt during the covid-19 times, as everything regarding the burial was left in the hands of the local government and other ancillary bodies.

United States of America:

The US had a much better approach due to its centralised body, Federal Emergency Management Administration (FEMA), which offered up to 9000$, as the funeral remuneration and had disbursed $2 billion. The only substantial criteria for this assistance was that the death certificate of the deceased should state that the death should have been occurred through by “may have been caused by” or “was likely the result of” Covid-19 or Covid-19-like symptoms. This programme was FEMA’s largest funeral assistance programme. 1 million people were eligible for this assistance but only 350k availed this, because of the funeral insurance and lack of knowledge about the programme.

The US government also related guidelines which needed to be followed by the Funeral Managers; adhering to them the Funeral Managers also formed their own guidelines in order to facilitate the process at all the temporary and permanent crematoriums. Moreover, National Funeral New York officially cremated the deceased in a batch of 24 every day at its public crematorium in Hart Island, earlier a general toll was 25 burials in the entire week but the situation was so grave that it had to bury 24 each day. (The burial was of the bodies which were not claimed or the families who could not afford burial).

Italy:

Italy adopted a stricter approach to funerals, its emergency law banned civil and religious ceremonies which included the banning of funerals during the pandemic. Only the priest was allowed to the say prayer and close family members could attend the procession. However, if a family member tested positive, the entire family had to go through a mandatory 15 days of isolation and if the patient died during these 15 days then not a single family member was allowed to attend, leaving no chance for a last goodbye to their loved-one’s. Due to the pileup, even military assistance was also taken in order to manage the crematoriums.

Germany:

Germany had an imbalance situation, as the old eastern Germany was poor and had lesser equipment to handle the overwhelming number of bodies. The Country only had government crematoriums, but had recently allowed private players as funeral managers.  The situation was so grave in the country that a casket made for one, was filled with three bodies, in order to save space, leading to pile of body in crematoriums which are already piled up with several coffins like the one described above.

China:

Chinese disasters of covid-19 are not highlighted in the news due to their closed policy of disclosing country-related matters. However, the funeral crises of Hong Kong could be used to understand the grave situation.

Hong Kong ran out of coffins, due to lack of wood leading to pile-up of bodies. In addition, the processing of death related documents, the process of burial was delayed. Moreover, the on-going issues of China in the South-China sea and other neighboring countries blocked a lot of supply to the former British-colony, Hong-Kong. The other source of supply for coffins to Hong Kong was mainland China but as they themselves suffered with the shortage, there was huge gap in the supply, leading to wait of days for a body to be buried.

Conclusion:

Indians have seen their loved ones suffer during the pandemic, they themselves have seen piles of bodies. Pictures tell us a million words about the trauma and sadness which had struck various houses, by not being able to express their last goodbye to their loved ones. India went into the pandemic with a faulty understanding of the numbers. Official data could not reveal the pain India was going through.

Despite the Right to dignified and respectful burial being an established right, there was no adherence to the same. Supreme Court, High Court, NHRC, and other NGOs echoed the right of the dead but limited actions were taken on the ground. This posts a lot of questions regarding the enforcement and importance of what these institutions hold during emergencies. Article 21, arguably the most important piece of law ever enacted in India was standing straight in order to protect the citizens, it helped courts to recognize the right even during the Covid times.

Though the pandemic has subsided but has left us with one major question, “Can India deny basic Human Rights during uncertain times?”.

The government was fighting with limited resources and its biggest enemy was the vast population. According to the claims, India was able to curb the pandemic with the minimum damages possible in a closely packed country, which in itself is a remarkable achievement. The population itself managed to handle the Covid at the local level. Indians have faced the storm with weak hands but a brave heart.


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