The Hathras Cremation: An overview of the Right To Dignity of the deceased

The recent events in Hathras, Uttar Pradesh have taken the country by storm. A 19 year old girl, was allegedly gang-raped in a field. She was seriously injured and succumbed to her injuries on September 29 this year.

Equally shocking was the fact, that the Uttar Pradesh authorities cremated her body at 2:00 am, which according to them, was done ‘in the presence of a family member’. There is a lot of speculation around the events, which led to the victim’s cremation.

Various news agencies have given different accounts of what really transpired before, and during the victim’s cremation. However, one thing is for certain that, the UP authorities cremated the victim’s body at 2:00 am.

The victim was a Hindu. According to Hindu customs, a body cannot be cremated after sunset and before daybreak. Other than the horrific act that led to the victim’s death, one can’t help but wonder--was the victim’s right to dignity violated upon death?

In this article, I highlight various judgments on the Right to Dignity of a deceased person.

On October 1 this year, a division bench of the Allahabad High Court took suo motu cognizance of the incident in Hathras, in the form of a Public Interest Litigation (PIL). The High Court relied on three judgments that dealt with the Right to dignity of a deceased person.

The three judgments are:

• Pt. Parmanada Katara vs Union of India and Ors. (1995) 3 SCC 248

• Ramji Singh @ Mujeeb Bhai Vs. State of U.P. and others (2009) 5 Alj 376

• Pradeep Gandhy Vs. State of Maharashtra (2020) SCC OnLine Bom 6621

In Pt. Parmanada Katara, the Petitioner challenged the manner in which a death sentence was executed under the Punjab Jail Manual’ The Petitioner also contended that suspending a prisoner’s body for half an hour after hanging violates the Right to Dignity and Fair treatment. The Supreme Court rejected the first challenge by the Petitioner. However, the court held that suspending a dead body for half an hour after hanging violated a prisoner’s dignity.

In Para 3 of the judgment, the Supreme Court held,

“We agree with the the petitioner that right to dignity and fair treatment under Article 21 of the Constitution of India is not only available to a living man but also to his body after his death.”

In Ramji Singh, a Writ Petition was filed before the Allahabad High Court describing the appalling conditions in a mortuary established by the State Government. The Petitioner contended inter alia that there were 11,590 jars with viscera in connection with 5,795 criminal cases from 1973 to 2003, which generated a foul smell in the area.

The Petitioner also contended that the air conditioners installed in the mortuary were in a state of disrepair. In Para 12 of the Judgment, the Court held as follows:

“…12. The Law has not so far defined a person to include a dead person. It, however, has some Rights, which cannot be detached from it, even if the body is denuded of the Life, which together forms a human being...”

The Court highlighted some of the Rights given to a dead person, such as the right of execution of a will under the Indian Succession Act, and Rights under the Transplantation of Human Organs Act, 1994.

The Court also held that:

“12…The word person may not be construed narrowly so as to exclude the dead body of a human being, who was the person, when alive, which is not claimed and which is required to be cremated or buried with in accordance with the religious beliefs of the person, if such beliefs can be found establishing his identity…”

The Court held that it was the duty of the State to protect the Rights of dead persons and ensure that a dead body is cremated in a decent and dignified manner, in accordance with the religious beliefs a man kept or professed.

In Pradeep Gandhy, the Bombay HC dealt with the issue of disposing of a dead body of a person who succumbed to the COVID -19 virus. In Para 38 of its judgment, the Court, while referring to Pt. Paramanand Katara, held as follows:

“38… Right to a decent burial, commensurate with the connected matters dignity of the individual, is recognized as a facet of the right to life guaranteed by Article 21 of the Constitution. There is, thus, no reason as to why an individual who dies during this period of crisis because of suspected/confirmed COVID-19 infection would not be entitled to the facilities he/she would have otherwise been entitled to but for the crisis…”

The Calcutta High Court took a similar view in Vineet Ruia vs The Principal Secretary, Ministry of Health & Family Welfare, Govt. of West Bengal & Ors and laid down additional guidelines for the disposal of dead bodies of COVID-19 victims.

The abovementioned judgments clearly indicate that a dead person has the Right to a decent burial or cremation in accordance with his/her religious beliefs, even in the midst of a pandemic.

In S. Sethu Raja vs The Chief Secretary [WP (MD) Nol.3888 of 2007], the Petitioner lost his son who died in Malaysia. The Petitioner wanted his son’s body to be sent to India.

In para 20 of its Judgment, the Madras High Court held as follows:

“There can be no dispute about the fact that the yearning of a father to perform the obsequies for his son who died in a alien land, is as a result of the traditional belief that the soul of a person would rest in peace only after the mortal remains are buried or burnt…. Therefore, in my considered view the State has an obligation under such circumstances, especially in view of the indigent circumstances in which the petitioner is placed, to arrange for bringing the body of the petitioner's son to India from Malaysia.”

The Madras High Court referred to the Supreme Court’s decision in Ashray Adhikar Abhiyan Vs. Union of India (2002) 2 SCC 27 and Pt.Parmanand Katara. This case specifically dealt with the Right of a victim to be cremated after death.

In its celebrated judgment on passive euthanasia, the Supreme Court in Common Cause v. Union of India [2018 SCC OnLine SC 208] held that right to die with dignity is an inseparable and inextricable facet of the right to life with dignity.

In Paramjit Kaur vs State of Punjab [(1996) 7 SCC 20], the Supreme Court studied a press note dated 16.01.1995 issued by the Human Rights Wing of Shiromani Akali Dal.

The press note stated that the Police regularly brought bodies to the municipality cremation grounds for cremation, and declared the bodies as unclaimed.

After perusing the contents of the press note, the Court held as follows:

“17. This Court cannot close its eyes to the contents of the Press Note dated January 16, 1995 stated to be investigated by Khalra and Dhillon. In case it is found that the facts stated in the Press Note are correct - even partially - it would be a gorytale of Human-rights violations. It is horrifying to visualize that dead-bodies of large number of persons - allegedly thousands - could be cremated by the police unceremoniously with a label " unidentified". Our faith in democracy and rule of law assures us that nothing of the type can ever happen in this country but the allegations in the Press-Note - horrendous as they are - need thorough investigation...”

The Supreme Court did not specifically refer to the Right to a dignified death in Paramjit Kaur’s case. However, it did state that the actions of the police, if true, would amount to Human Rights violations.

In Vikash Chandra @ Guddu Baba v. The Union of India & Ors 2008 SCC OnLine Pat 905] it was alleged that a medical college in Patna was throwing dead bodies in the Ganges without stitching up the post mortem operation openings.

The Court held that the authorities are expected to dispose unclaimed or unidentified bodies in accordance with the law and with utmost respect to the deceased. The court also held that the last rites should be in accordance with the known faith of the deceased.

The Allahabad High Court’s order dated October 1 this year refers to a number of news reports which indicate inter alia that the victims family wanted to apply ‘haldi’ on the victims body before she was cremated, however, the family was not allowed to do so.

The victim’s family is stated to have informed the police that the victim’s body cannot be cremated after sunset and before daybreak, but the authorities went ahead and cremated the body at 2:00 am regardless. The victim was a Hindu, and on the basis of the judgments discussed above, it is clear that she had the Right to be cremated according to Hindu customs and practices.

The victim at Hathras has been denied dignity in life and in death. The events leading to her death have to be ascertained in detail by the Investigating authorities. The perpetrators have to be apprehended. The loss of dignity in death however appears to be clear and established.

May her soul rest in peace.

(The author is a student of law at the Dr. Ambedkar College, Nagpur)