Civilizations differ. Cultures differ. Faith systems differ. Religions differ. And regimes differ. However, one common custom that history has witnessed across all epochs is handling human dead bodies gently with respect. All through, the deference of dead bodies is so intrinsic that families have been given every right to bury/cremate their kin with respective religious rituals. Exceptionally whenever and wherever dead were disregarded, history has lobbed ugly lessons.
In a resolution adopted in 2005, on human rights and forensic science, UN Commission on Human Rights underlined “the importance of dignified handling of human remains, including their proper management and disposal as well as of respect for the needs of families”.
Besides, Geneva Convention 1949 IV reads—“As far as military consideration allow, each party to the conflict shall facilitate the steps taken to protect the killed against ill-treatments. Graves be properly maintained and marked so that they may always be found”.
Many countries across the globe have laws/guidelines framed for handling the rights of the dead. For instance, Australian constitution notes, “The remains of the dead, regardless of whether they are combatants, non-combatants, protected persons or civilians, are to be respected, in particular their honour, family rights, religions, convictions and practices and manners and customs; at all times they shall be humanely treated”. Likewise, even the US Field Manual says, “Maltreatment of dead bodies is a war crime”.
Coming to India, interpreting Article 21 of the constitution, in many cases, the judiciary has included right to have a decent burial in it. Hence, extending the right to human dignity to the dead body as well.
Supreme Court of India in one case, Ashray Adhikar Abhiyan v. Union of India, AIR 2002 SC 554, acknowledged that the government should take all the possible steps to give a decent burial to the unclaimed dead bodies found on the road. Similar directions were given in 2013 when the issue of disposal of unclaimed bodies found in railway areas came to the Supreme Court. Moreover, the Indian Penal Code (IPC) also deals with some of the offences related to the burial of a corpse.
The point is that if law guarantees the decent burial of unclaimed dead bodies, how can it allow disparity in case of human corpses that have next of kin clamoring for the right to possess the body for decent burial as per their religious rituals.
A news report that “a day after the death of a shopkeeper, allegedly in police custody, the J&K police refused to hand over the body to his family, saying a gathering on his funeral could have increased the scope of COVID-19 transmission”(NDTV-September 17, 2020). Denying the body to the family on the grounds of Covid-19 transmission seems untenable as Ministry of Home Affairs in its Unlock 4 guidelines issued in August states, “Marriage related gatherings with a number of guests not exceeding 50 and funeral/ last rites related gatherings with a number of persons not exceeding 20 will continue to be allowed up to September 20, 2020, after which ceiling of 100 persons will apply”.
NDTV report is not just the story of one deceased individual. For the last few months in Kashmir, many dead bodies haven’t been handed over to their families. Mourning is maimed when the law guarantees assembly of 20 persons for the funeral of anyone, be it a slain shopkeeper or someone else who loses life in custody, crossfire and combat.
Moreover, since there is no dearth of security bandobast in Kashmir, the dead bodies could be returned to their families for decent funeral amidst precautionary measures to circumvent apprehensions, if at all any. Given that the visits of high ranking officials and politicians to various sensitive areas of Kashmir are facilitated by extending security cover and restrictions, the funeral and burial of dead bodies, as law guarantees, should be allowed at least for near relatives.
Bottomline: The burial right is a sacred trust that nobody can deny to the family of a dead person. It’s a strongly favored perception that decent funerals and proper burials/cremations are a consolation for any estranged society besides being an inherent right of relatives. To avert any inquest or justify the same under the likelihood of Covid-19 transmission, it’s simply unfair to refuse a body to the family for a lawful and religious funeral and burial. The question is not about a sack of flesh; it’s a deep emotion, owned and linked to the family—the one dear to them as it was dear to them when the deceased was alive.