We all are familiar with the recent turn of events that happened last night. Yes I am talking about the late night Unauthorized (by the family) Cremation of Hathras rape case Victim. It shook me to the core. It made me question whether a human who has seen such inhumanity just before her death is not even entitled to get a proper cremation according to and by her family and loved Ones? It made me question Whether the father, the mother, the brother and the near relatives holds no right over the body of their loved daughter or sister? It also made me question whether the state or the police has unfettered power to do anything with the dead body of the victim? Can the state or police cremate the body of the victim in absence (or holding back and not allowing) the family to witness the cremation?
When the mainstream media is busy in investigating the most important question of this decade i.e. “the drug case” and involvement of the Big “Bollywood Stars” let’s roll up our sleeves and try to get some answers to these questions ourselves and to understand this we first need to know whether there are any rights provided by statute to the deceased people or not?
Provisions for rights of the dead in India
In India, some rights have been provided by statutes like the Indian Penal Code to the bodies of people after they die. These are enumerated as under:
Article 21 of the Constitution of India:
In India, the rights of the dead have been derived from Article 21 of the Constitution of India. This was followed in the landmark case of Pt.Parmanand Katara Vs. Union of India. In this case, public interest litigation was filed by a lawyer, challenging the method of execution. Therefore, in this case, the Supreme Court Of India recognized that right to life, to fair treatment and dignity, extends not only to a living person but also to their bodies after death.
Another important case was that of S. Sethu Raja v. The Chief Secretary. In this, relying on the previous judgement, it was held that, right to human dignity is available to persons even after their death.
In another case of Ashray Adhikar Abhiyan Vs. Union of India, It was held by the apex court that people have a right to a decent burial, according to the religious faith to which the person belonged before death.
Therefore, it can be safely concluded that a dead body has a right to a decent burial in India. Coming to the question of who has the duty or the right to bury the dead. This is as such not explained in any Indian law. However, it is accepted that the right to bury is with the spouse or the next in kin.
In another case of Sh. Madhu Vijayan And Anr. vs Sh. S.G. Ravishankar on 10 March, 2006, a decision by Delhi High Court, in this case the plaintiff was the son of the deceased person and the question as to who gets the right to cremate/bury has been indirectly touched upon. A comment has been made in this judgement regarding the said question which is as follows:
“Learned senior counsel for the defendant is also right in his submission that the dispute today is not as to who has to cremate the body. Had that been so, indubitably, the plaintiffs had every right, rather exclusive right to cremate the body.”
It is also said that common law recognizes the executors’ right to possession of the mortal remains of a deceased person as held in Williams v. Williams reported as (1882) 20 Ch.D.659.
Section 5 of the Transplantation of Human Organs Act, 1994 recognizes only the right of the ‘near relatives’ of the deceased to claim dead bodies. ‘Near relative’ has been defined in Section 2(i) as ‘spouse, son, daughter, father, mother, brother or sister’.
Section 297 of the Indian Penal Code:
Trespassing a burial place is a cognizable offence under Section 297 of the Indian Penal Code, it clearly prohibits irreverence to dead bodies . this section prohibits entering into a place where, the funeral rites are performed and offering any indignity to any human corpse or causing any disturbance to any other persons, who are assembled for the performance of funeral ceremonies with an intention to wound the feelings of any person.
Thus, the right to decent burial comes under the Indian Penal Code. But who is authorized to give a decent burial is not mentioned anywhere in the law. Generally, this right will go to the living spouse or to the next kin.
Section 404 of the Indian Penal Code:
Section 404 of the Indian Penal Code deals with dishonest misappropriation of a dead man’s property. The object behind Section 404, IPC is to afford protection of property which by reason of its being peculiarly needs protection where the person who could look after it is dead and the person, who is expected and entitled to look after it after the death of the aforesaid person has not appeared on the scene. A person prosecuted under Section 404 of IPC, can be punished with imprisonment either description for a term which may extend to 3 years and also shall liable to fine and if the offender is a clerk or a servant of the deceased person, the imprisonment may extend upto 7 years.
Section 499 of the Indian Penal Code:
Section 499 of the Indian Penal Code which deals with defamation, also defines that libel or slander against a dead person also contributes the offence of defamation . In the landmark case of Mrs Pat Sharpe v. Dwijendra Nath Bose, the court held that, “even if Netaji is dead, it is defamation because the imputation would have harmed his reputation if alive and the imputation must be said to have been intended to be hurtful to the feelings of his family or other near relatives”.
Section 503 of Indian Penal Code:
Section 503 of the Indian Penal Code which deals with criminal intimidation, which also includes threatening a person with injuring the reputation of a dead person dear to him as an offence and section 506 provides that if Any person who commits offence under Section 503 of IPC shall be punishable with imprisonment of either description for a term which may extend to 2 years or with fine or with both.
Conclusion:
The above mentioned laws and provisions especially the highlighted points clearly show that the right to cremate and every other action related to the deceased person’s body is with the family or near relatives and the cremation should be done according to the religious belief and in presence of the family of the deceased person. This also means that the events which took place last night are highly condemnable and beyond legality and morality.
Discussions 