No reason to deprive the dead of last rites: Bombay HC junks pleas against burial in Mumbai cemeteries on fear of COVID-19 spread from soil
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No reason to deprive the dead of last rites: Bombay HC junks pleas against burial in Mumbai cemeteries on fear of COVID-19 spread from soil

The Court passed the ruling on noting that there was no scientific evidence at present to show that COVID-19 may spread to living human beings from the cadaver of any suspected/confirmed COVID-19 infected individual.

Meera Emmanuel

The Bombay High Court on Friday dismissed pleas filed against Mumbai municipal authorities for permitting burials at three cemeteries in Bandra (West) amid the COVID-19. The pleas had been moved on fears that COVID-19 may spread through the buried bodies.

However, the High Court today pointed out that there was no scientific to show that COVID-19 can spread through dead bodies.

The Bench of Chief Justice Dipankar Datta and SS Shine observed that "even according to the WHO, there is no evidence of persons having developed infection of COVID-19 from exposure to the cadaver of a suspected/confirmed COVID-19 individual. That apart, the recommendations of the WHO are further clear on the point that people who have died because of COVID-19 infection can either be buried or cremated."

The Court went on to hold that in the absence of any evidence that the viral disease could spread through the dead, the right to decent burial of a person under Article 21 should not be taken away.

The Court observed that rights to fair treatment and dignity is available "not only available to a living man but also to his body after his death."

It was observed that, "Right to a decent burial, commensurate with the 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 Court went on to hold

"... we find little reason to deprive the dead of the last right, i.e., a decent burial according to his/her religious rites. On the face of there being no evidence, at least at this stage, that COVID-19 infection may spread to living human beings from the cadaver of any suspected/confirmed COVID-19 infected individual, the attempt on the part of the Petitioners to question the decision of the Municipal Commissioner to allow burials, without even challenging it, is misconceived and misdirected and does not persuade us to grant any of the reliefs claimed by them."
Bombay High Court

It the course of the judgment, the Bench also commented, "If indeed risk from a dead body would endanger the lives of human beings, the risk involved in treating COVID-19 infected patients by the medical and the para-medical staff, who are the frontline workers to combat the virus, would be much greater. Are such staff shying away from treating COVID-19 patients? The answer must be an emphatic 'no'. It all boils down to the nature of precautions taken while one handles the dead body and also at the time of its burial."

The Court also took critical note of an amended circular passed earlier by the Municipal commissioner earlier, wherein the burial of COVID-19 patients was briefly disallowed. While the Bench observed that the same was drastic and without any scientific basis, it added that the subsequent circular (which was challenged) that notified cemetaries for burial of COVID-19 patients "was a timely move to restore sanity."

While dismissing the pleas challenging such burial, the Court also observed today that this is a fit case for imposing exemplary costs. However, the Bench refrained from doing the same, while observing that the petitioners may have been prompted to move the Court "more out of panic" than "any genuine belief that they had a strong case to espouse."

The BMC's directives permitting the burials of those dying of COVID-19 in available cemetery plots was upheld, with the Court emphasising that the precautionary guidelines issued by the World Health Organisation (WHO) and the Central Government would have to be followed in the process of burial.

The Court said that the municipal authorities are empowered with the discretion to demarcate cemetery plots as required for the burial of persons. In this regard, the judgment states, "It is indeed a matter of policy whether to close down a place for disposal of the dead. Unless any decision shocks the conscience of the judicial review Court, it ought to stay at a distance."

Read the Judgment:

Bombay HC Judgment - Burial of COVID-19 patients.pdf
Preview

Earlier this month, a petitioner in the matter, Pradeep Gandhy had also approached the Supreme Court through Advocate Udayaditya Banerjee, stating that the “present unprecedented health situation ought to take precedence over the religious rights of the deceased’s family members.”

This followed after the Bombay High Court refused to grant any interim relief on the plea on April 27.

Instead, Justice BP Colabawalla had directed the BMC to remove, with the help of local police, the three locks put up on the gates of the cemetery ground in Bandra by local residents. The locks were put up on April 13 after they held a protest against the burial of a dead body at the cemetery ground.

The three burial grounds in question are the Ward Konkani Muslim Cemetery No. 80, Khoja Sunnat Jamat Kabrastan Bandra West and KhojaIsna Ashari Jammat Kabrastan Bandra West.

On May 4, the Supreme Court declined to interfere in the matter, instead directing the Bombay High Court to decide on the case within 2 weeks. The High Court has now dismissed all pleas filed on the issue.

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