Right to Decent Burial Facet of Right to Life, Can't be Taken Away Even During Covid-19 Pandemic: Bombay HC

The right to a decent burial is recognized as a facet of the right to life and even in such a pandemic situation this right cannot be taken away from any person, the Bombay High Court said on Friday while holding that the Mumbai civic body had the power to designate any cemetery to dispose of bodies of COVID-19 patients.

It also noted that there was no scientific study to show that novel coronavirus spreads through cadavers.

A division bench of Chief Justice Dipankar Datta and Justice S S Shinde dismissed a bunch of petitions challenging an April 9 circular issued by the BMC designating 20 burial grounds and cemeteries in the city for disposing of bodies of persons who died due to COVID-19.

"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 bench said in its order.

The court, quoting Oscar Wilde, said, "Death must be so beautiful. To lie in the soft brown earth, with the grasses waving above one's head, and listen to silence. To have no yesterday, and no tomorrow. To forget time, to forget life, to be at peace."

"We are sure, while preparing to embrace the painful truth, i.e., death, one would like to depart from life, the beautiful lie, with these soothing thoughts in mind. However, in the recent past, the situation in Mumbai posed uncertainties for quite a few. The havoc wreaked by coronavirus was enough to cause disarray in their lives," the order said.

The court noted that the circular issued by the civic body was in consonance with law and the corporation had all authority and power to designate burial grounds and cemeteries.

The bench added that the corporation and other concerned authorities shall have to follow the guidelines prescribed by the government of India and the World Health Organisation (WHO) for safe disposal of bodies infected with COVID-19.

"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 said.

The bench noted that persons who handle the cadaver have to adopt precautionary measures and a detailed procedure to be observed at the time of burial is also laid down.

"Observance of such detailed procedure at the time of burial is, in our view, sufficient safeguard from exposing the near and dear ones of the deceased who would choose to assemble at the cemetery for having a last look at the deceased and to bid them a final goodbye," the court said.

The court rebuked the initial notification issued by the BMC which said burial of bodies of COVID-19 patients would not be permitted and said the corporation's move to withdraw that circular and issue a fresh one was a timely move to restore sanity.

"To err is human but taking lessons from mistakes and rectifying the situation was the call of the moment. Proper management of disposal of dead bodies ought to have been worked out consistent with the recommendations of WHO and the government of India guidelines, as well as the sentiments of the members of the communities for whom burial of a dead member is an integral part of their religious belief and faith," the court said.

It added that though such management was initially lacking, but ultimately better sense prevailed on the corporation which left no stone unturned to remedy the situation.

On one petition filed by a suburban Bandra resident Pradeep Gandhy challenging the corporation's decision to bury COVID-19 infected bodies at Bandra Kabrastan (burial ground), the court said this was a fit case to impose "exemplary cost" on the petitioner, but it was refraining from doing so considering the ongoing pandemic.