As handling of Covid victims sparks debate in India, what do courts say on rights of the dead

The Constitution of India and all corresponding legal guidelines of the land have exhaustively laid down innumerable rights which are granted to the residents of the nation. But what number of of these rights can be found to an individual after his demise?

This query has been examined by a number of academicians and judges in the course of Indian historical past and as of at this time, the rights of the dead can broadly be categorized into two sorts: these pertaining to disposal of our bodies and the proper to be protected against any crimes in opposition to the corpse.

With Covid-19 killing over 3.37 lakh individuals in India to date, based on the official figures, the nation has witnessed a significant disaster with the handling of the dead, notably throughout the second wave.

Also Read | Over 1,000 unclaimed bodies of Covid patients cremated in Bengaluru

While an enormous quantity of our bodies had been discovered dumped in the river, many had been discovered buried in the sand with no means for cremation. With makeshift crematoriums, pyres overloaded with our bodies and corpses floating in the rivers, considerations have grown over the remedy of the dead throughout the pandemic.

Here’s a take a look at what Indian courts have laid down for the dead:

DISPOSAL OF BODIES

1. The proper to relaxation

In a landmark judgment of Common Cause (A Regd. Society) versus Union of India, the Supreme Court in 2018 held that “the right to life includes the right to die with dignity”. Through this and varied different judgments relied on in the verdict, the ambit of Article 21 was expanded to incorporate what may be termed as the proper to relaxation.

Within this, any one who has died is claimed to have the proper to an honest burial with none delay. In 1995, the Supreme Court in the case of Parmanand Katara versus Union of India recognised the proper to be cremated with dignity. The court docket held, “the word and expression ‘person’ under Article 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, (will) have an extended meaning to treat his dead body with respect.”

Bodies buried in the sand on the banks of Ganga in Prayagraj. (PTI)

“The State must respect a dead person by allowing the body of that dead 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 post-mortem or for any scientific investigation, medical education or to save life of another person in accordance with the law, the preservation of the dead body and its disposal in accordance with human dignity.”

While the regulation doesn’t particularly acknowledge it as the duty of the State to make sure that our bodies are handled with dignity, innumerable judgments of varied courts have made the obligation amply clear.

Also Read | Hospital staff asks relatives to look for kin among pile of bodies of Covid victims

Right to relaxation additionally consists of inside itself a safety in opposition to any trespass or disturbance brought on to a physique that has been buried. Section 297 of the Indian Penal Code says, “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 sepulture, 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.”

While this part protects a physique from “any indignity to the human corpse”, the essence of the regulation lies in the “intention” of the particular person and particularly offers with trespasses on locations of sepulture or these set aside for funeral rites.

2. Who has rights on the corpse

Any type of property proper in itself doesn’t exist for the deceased. However, a physique after demise is taken into account to be a “quasi-property” for the functions of burial. Before the last rites are carried out, the rights to the physique belong to the surviving partner of the deceased or his subsequent of kin.

After the burial, nevertheless, the corpse turns into the custody of regulation and can’t be disturbed with out particular instructions from a court docket below extraordinary circumstances.

3. Right in opposition to disinterment

After burial, since the physique comes below the custody of the regulation, disinterment will not be a proper that may be exercised. Disinterment or exhumation may be determined solely by the court docket after contemplating the circumstances and the causes.

Courts in common do not favour disinterment. The precept behind that is that the sanctity of the grave needs to be maintained to deal with the dead with dignity. So, except there are robust causes or change in circumstances that require the physique to be eliminated, courts normally do not entertain the thought.

CRIMES AGAINST THE CORPSE

Even although not many rights can be found to a dead particular person, the Indian Penal Code lays down a number of offences in relation to the dead. Section 297 offers with trespass in locations assigned for final rites and has been mentioned above.

In addition to this, Section 404 offers with dishonest misappropriation of a dead man’s property, Section 499 prohibits any libel or slander in opposition to a dead particular person and Section 503 says prison intimidation consists of threatening an individual with injuring the fame of the deceased pricey to him.

Despite all the offences laid down above, the IPC doesn’t particularly have a regulation in opposition to necrophilia, which is taken into account to be the most heinous crime that may be dedicated in opposition to a corpse.

Offenders of such nature are charged below Section 297 (trespass) and Section 377 (unnatural intercourse). Without a particular provision coping with the crime, the punishment given to these convicted is normally not in proportion to the gravity of the offence.

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