[Disposal of COVID-19 victim bodies v. Parsee last rites] Right to religion subject to public order, morality, and health: Gujarat High Court

The Gujarat High Court on Friday held that the protocol for disposal of bodies of those who succumbed to COVID-19 was not in violation of the fundamental right to religion of Parsees who practice Dokhmenashini ( The Surat Parsi Panchayat Board v. Union Of India.)

. The Court dismissed a petition filed by the Surat Parsi Panchayat Board seeking a declaration that the Covid-19 Guidelines on Dead Body Management issued by the Union Ministry of Health and Family Welfare are violative of Articles 14, 19, 21, 25, 26 and 29 of the Constitution for not allowing traditional Parsee last rites, called Dokhmenashini.

. As per the practice, the dead body is kept at a height in a structure known as a Tower of Silence, to be eaten by vultures and the remains are exposed to the Sun to be decomposed.

. A Division Bench of Justices Bela M Trivedi and Bhargav Karia observed that the guidelines were issued in the larger public interest and take precedence over religious faith and belief of a particular class of community . The order stated,

"The safety and the welfare of the State is the supreme law as comprehended in the legal maxim – “salus populi suprema lex”. Even the fundamental rights to profess, practice or propagate religion, and the right to manage religious affairs, as enshrined under Articles 25 and 26 of the Constitution of India, are subject to public order, morality and health."

. The Bench relied on the recent judgment of the Supreme Court relating to holding the annual Kanwar Yatra in the midst of the pandemic. In that verdict, it was held,

“ The health of the citizenry of India and their right to “life” are paramount. All other sentiments, albeit religious, are subservient to this most basic fundamental right .”

.[BREAKING] Kanwar Yatra cancelled in Uttar Pradesh after Supreme Court suo motu intervention . The petitioners moved the Court contending that for more than 3,000 years, the community laid out their deceased in a secluded place called Dakhmas or colloquially Towers of Silence, and had practiced Dokhmenashini.

Due to the COVID-19 guidelines, the authorities did not allow the religious mandates of the Parsee community to be carried out.

. Senior Advocate Asim Pandya , appearing for the petitioners, submitted that the Dokhmenashini is an integral part of the religious practice of the Parsee community, and it is their fundamental right to practice their religion in accordance with their faith and belief.

It was further submitted by the petitioners that no scientific study or data available suggested that the Coronavirus could be spread through dead bodies.

. Advocate General Kamal Trivedi and Additional Solicitor General Devang Vyas submitted that the COVID-19 guidelines were issued in larger public interest to prevent the spread of the virus.

. Counsels for the respondents also drew the Bench’s attention to Guidelines by the World Health Organization (WHO) that recommended disposal of dead bodies affected by COVID-19 by cremation or burial.

. Incidentally, Senior Advocate Perci Kavina was present in Court during this hearing. Belonging to the Parsee community, he sought the permission of the Court to put forth some facts.

He submitted that for the last 100 years, the means of disposal of dead bodies by Parsees is burial. He elaborated that the burial is neither unknown to the Parsees, nor it is considered anathematic or sacrilegious to be buried .

. The Court also noted that the petition was filed in May 2021, after the severity of the COVID-19 pandemic has substantially subsided and the issue had become academic .

It was observed that as per established law, the High Court does not undertake to decide an issue unless it is a living issue. If an issue has become purely academic, the Court would not engage itself in deciding it.

. Therefore, the Court dismissed the petition for being devoid of merits.

. [Read Order Here]

[Disposal of COVID-19 victim bodies v. Parsee last rites] Right to religion subject to public order, morality, and health: Gujarat High Court

Shagun Suryam

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