The right to life under Article 21 of the Indian Constitution, which guarantees the right to life and personal liberty, encompasses many aspects of a person’s life. Through an evolution of judgments by the Constitutional Courts, the provision has been interpreted and expanded to include the right to health[1], privacy[2], livelihood[3] and a plethora of other ancillary rights which make life more than a mere animal existence[4]. Article 21 of the Constitution of India guarantees protection of life and personal liberty of all persons but does this protection extend beyond the life of a person and into his/her afterlife? What are the rights enjoyed by the dead and deceased under the Constitution?
While there is no explicit law which protects the rights and dignity of the dead and deceased in India, specific provisions under legislative enactments either provide for or existing provisions have been interpreted to a wider scope to recognize the rights of the dead. Article 21, which by itself guarantees protection of right to life, has been interpreted to extend human dignity into the afterlife. The Supreme Court in the case of Parmanand Katara v. Union of India[5], for the first time recognized the dignity of the dead and held that the right to life, fair treatment and dignity extends not only to a living person but also their dead bodies after death. The stance of the Apx Court was amplified by its ruling in Ashray Adhikar Abhiyan v. Union of India[6] where it reiterated its stance by extending the right to dignity of the dead translating to a right to a decent burial in accordance with their respective faith, customs and practices including for the homeless-deceased unclaimed dead bodies.
Following the footsteps of the Supreme Court, several judgments from the High Court have also affirmed and interpreted the same in different cases. In the case of S. Sethu Raja v. Chief Secretary[7], the Madras High Court, while ruling on a plea for the return of a dead body of a migrant worker in Malaysia, directed the Government authorities to bring the body so that the burial can take place in accordance with the family’s customs and traditions.
In Ramji Singh & Mujeeb Bhai v. State of Uttar Pradesh[8], the Allahabad High Court, while dealing with a petition in respect of the appalling conditions of a mortuary set up by the Government of Uttar Pradesh, contended that the right to life extended to the dead body of the person by means of providing a decent burial and imposing a responsibility on the State Government to ensure preservation and disposal of the body in accordance with dignity and respect which the person deserves as when s/he would have been alive.
In the case of R.S. Bharati v. Government of Tamil Nadu[9], the Madras High Court in dealing with a petition for the laying of the mortal remains of Dr.Kalaignar M.Karunanidhi, former Chief Minister of Tamil Nadu, ruled and reiterated the judgment of the Supreme Court in Parmanand Katara which held that the right to fair treatment and dignity extends to the dignity of the individual.
The relevance and significance of the right of the dead and deceased was all the more necessary during the COVID-19 pandemic in India where during the second wave, several bodies were piling away and there was delay in the disposal there owing to the fear and social stigma attached to the virus. Several High Courts including that of Bombay[10] and Madras[11] High Court, took cognizance of the same and passed important orders which upheld and reiterated the right to a decent burial with dignity to be a part and parcel of right to life under Article 21 of the Constitution of India.
[1] State of Punjab v. M.S. Chawla, AIR 1997 SC 1225
[2] K.S. Puttaswamy v. Union of India, 2017 10 SCC 1
[3] Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180
[4] Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295
[5] Parmanand Katara v. Union of India, MANU/SC/2328/1995
[6] Ashray Adhikar Abhiyan v. Union of India, MANU/SC/0018/2002
[7] S. Sethu Raja v. The Chief Secretary, 2007 (5) MLJ 404
[8] Ramji Singh & Mujeeb Bhai v. State of Uttar Pradesh, (2009) 5 Alj 376
[9] R.S. Bharati v. Government of Tamil Nadu, (2018) 4 CTC 673
[10] Pradeep Gandhy v. State of Maharashtra, 2020 SCC OnLine Bom 662
[11] Suo Moto W.P. No. 7492 of 2020