Honouring The Constitutional Commitments Of The Departed

In a significant move to afford protection to the dignity of the departed, the Rajasthan Assembly passed a bill, with an objective to prevent the protests sitting with dead bodies, and ensuring the last rites of the deceased performed to safeguard the human dignity of the dead.

After coming up with bills for platform-based Gig Workers and a minimum guaranteed income bill, the Rajasthan State Assembly on 20th July 2023 passed another bill, the Rajasthan Honour of Dead Body Bill, 2023. The Bill’s objective is to uphold the fundamental human rights of the dead body and provide them the deserved honour and dignity. It also prohibits protests sitting with dead bodies, by relatives or other persons, at public places asking for compensation and jobs. Shanti Dhariwal, Minister of Parliamentary Affairs, told the assembly the need for the Bill arose due to the increase in the incidence of protests with the dead bodies and asking for unjustified demands. Minister also said 306 incidents were reported between 2019 and 2023.

Respect for the Dead 

Hon’ble Supreme Court of India in the case, Pt. Parmanand Katara, Advocate v. Union of India (1), held that, “right to dignity and fair treatment under Article 21 of the Constitution of India is not only available to a living man but also to his body after his death”. 

The Bill seeks to curb the practice of protests, which are performed by the relatives of the deceased person in asking for compensation and jobs. The Bill, indeed, is a welcome step for honoring a dead person and his human dignity even if he/she is dead. The Bill provides for punishment in case the directions provided in the Bill are not adhered to. The Bill also delves into the issue of the dignity of unclaimed corpses. 

Chapter 2 of the Bill discusses the rights of the dead person, under which Section 3 makes it mandatory to provide every dead body “decent and timely last rites according to the known and prevailing tradition or custom of the community or religion, as soon as possible.” Further, liability is imposed upon family members to perform the last rites of the deceased as soon as possible, provided no exceptional circumstances arise.

Hon’ble Supreme Court of India, in the case, Mohammed Latif Magrey v. Union Territory Of Jammu and Kashmir(2), held that – “It goes without saying that the right to live a dignified life as enshrined under Article 21 of the Constitution is not only available to a living person but also to the “dead.” Even a dead person has the right of treatment to his body with respect and dignity which he would have deserved had he been alive, subject to his tradition, culture, and religion which he professed.”

Further, UN Commission on Human Rights underscored “the importance of dignified handling of human remains, including their proper management and disposal, as well as of respect for the needs of families,” in the resolution adopted in 2005, on the issue of Human Rights and Forensic Science. 

The Bill also discusses unclaimed dead bodies, their storage, and disposal. The Bill directs for storing the unclaimed dead bodies in a dignified manner and not piling them up, like where dead bodies were kept over each other as a sack of sand. Proper segregation of dead bodies based on gender is also provided in the Bill.

Is the Right to Protest curbed?

As the Bill was passed by the Rajasthan Assembly, there were oppositions to the Bill as some claimed it interfered with a person’s right to protest under article 19(1)(a) and 19(1)(b). 

Hon’ble Supreme Court of India, in the case, Amit Sahni v. Commissioner of Police and Ors(3), held, “Article 19, one of the cornerstones of the Constitution of India, confers upon its citizens two treasured rights, i.e., the right to freedom of speech and expression under Article 19(1)(a) and the right to assemble peacefully without arms under Article 19(1)(b). These rights, in cohesion, enable every citizen to assemble peacefully and protest against the actions or inactions of the State. These rights are subject to reasonable restrictions, which, inter alia, pertain to the interests of the sovereignty and integrity of India and public order, and to the 9 regulations by the concerned police authorities in this regard.”

The right to protest guaranteed under the articles as mentioned above is not absolute and is subject to reasonable restrictions, provided under the Articles 19(2) and 19(3). Public order is one such reasonable restriction. While staging a protest with a dead body, persons can be emotionally and sentimentally charged; there is a possibility of grave danger to public order being disturbed.

The Bill in no way prohibits people from staging the protest; it only prohibits protests sitting with dead bodies. The person already dead should not be dragged unnecessarily into the scuffle; he/she should be laid to rest in peace. 

The Punishment Problem 

Shanti Dhariwal, Minister of Parliamentary Affairs, during his address to the assembly, used the Hindi Phrase, “Dhanda Bana Rakha Hai”, this remark seems to be harsh to depict the plight of protestors. The point to ponder is why the relatives are compelled to stage to protest sitting with the dead body of their departed loved one. What is the reason behind this act of theirs? Bill has provided for the punishment if the dignity of a dead body is not respected but has not provided for the proper dispute resolution mechanism to hear the plights of the deceased relatives. Punishment at a time when a member of the family has demised when the family is in the grief of his/her loss, cannot be the proper course of action to control this behaviour of the populace. Any relative or family member of any deceased person does not desire their demands to be heard through the dead body of their demised loved one. The Government should consider this issue to be incorporated in the act so that relatives or family members are not distraught about the relief. The Punishment provided, also falls short of the proportionality test which requires three criteria’s to be fulfilled: – 

  1. Necessity of Aim.
  2. Legality of the method adopted.
  3. Proportionality.
DNA Profiling and Data Storage-

While the Bill discusses a lot about claimed dead bodies, it has given consideration to the issues associated with unclaimed/unidentified dead bodies. Sections 11, 12, and 13, Protection of Genetic Data Information; Data bank; Digitalization of data; provide for the unclaimed dead bodies. Under the Bill, genetic data information of an unidentified body shall be obtained through DNA profiling. Further, the Bill makes it mandatory to establish the data bank for storing biological samples and genetic data of the unclaimed bodies. District wise digital dataset creation will be done on a web portal for the unidentified dead bodies. 

While the Bill’s objective related to the digitization and maintenance of genetic data is laudatory, the govt. should remember the confidentiality of the data and prevent the leak of the data stored. In addition to providing decent last rites to maintain the human dignity of the dead the government, at the same time, should remember that the data stored should be protected. Punitive measures exist in the Bill for these situations, but still, prevention is better than cure. 

Article 21 Beleaguered- 

The same Article 21, which guarantees every human being the right to live with human dignity, also guarantees them the Right to Privacy, i.e., the right to be let alone. The government, while ensuring the human dignity of the dead, should not do away with another aspect of the same Article 21.  

In National Legal Services Authority v. Union of India(4), elaborating on the scope of Article 21, the Supreme Court held, “Article 21 takes all those aspects of life which go to make a person’s life meaningful. Article 21 protects the dignity of human life, one’s personal autonomy, one’s right to privacy, etc.”

At last, the step taken by the Rajasthan government is laudatory, but it is essential for the government to take into account the issues relating to dispute resolution mechanism to reduce the plight of family members as well as rethink the punishments prescribed and also ensure that the grieved family is not harassed to claim compensation, relief or damage, etc. It is hoped that the government follows its path, i.e., upholding Article 21 in its letter and spirit.

Footnotes 
  1.  Pt. Parmanand Katara, Advocate v. Union of India, (1995) 3 SCC 248.

  2. Mohammed Latif Magrey v. Union Territory Of Jammu and Kashmir, 2022 SCC OnLine SC 1203

  3. Amit Sahni v. Commissioner of Police and Ors, AIR 2020 SC 4704.

  4. National Legal Services Authority v. Union of India, (2014) 5 SCC 438.

Deepankar Shastri

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