INTRODUCTION:

When this year began, the heartbreaking incidents which were occurring without a break seemed hard to digest. But we hadn’t known that the most troubling hardships hadn’t even arrived yet. COVID-19 has proved just how woefully unprepared people all over the world are in dealing with situations like the one we find ourselves in currently. However, gradually, we amended our lifestyles to reduce the spread of this deadly virus, practising social distancing and maintaining strict standards of hygiene. Without these necessary steps, the devastation we are witnessing now would have been worsened tenfold.

With countries still trying to contain the spread of this disease and save the lives of their people, new issues with a legal facet have sprung up in our own country, which are just as relevant and much more controversial. Recently, a debate has started pitting a person’s right to religious practices as guaranteed by the Constitution against the need of the hour to protect the health of the citizens.

HOW DID IT START?

This crisis of faith started in March when the Brihanmumbai Municipal Corporation (BMC) issued a circular which made it compulsory that all fatalities due to Covid-19 must be cremated, regardless of the religion of the deceased. The circular was issued due to an incident where an 85-year surgeon died due to Covid-19 but his body was buried by his family without following the protocols laid out. However, the BMC amended its order a week later and allowed burial in 20 notified cemeteries. Afterword, a petition was also filed in the Supreme Court asking for the cremation of the dead bodies or at least burial in a less populated area. An intervention application was filed by Jamiat Ulama-i-Hind in response to it, claiming that burial of the dead was an important part of Islam and Christianity and protected by their Fundamental Right to practise one’s religion under Article 25 of the Indian Constitution.

RIGHT TO RELIGIOUS FREEDOM:

Now, it is well known that the Constitution of India guarantees to its citizens the right to practice, profess and propagate their religion under Article 25 and also manage their own religious affairs under Article 26. However, despite it being a Fundamental Right, there are certain restrictions placed on it, namely public order, morality and health. In the present controversy, it is the last category we will be focussing on.

Religious freedom is subject to public health and as such, it is the duty of a welfare state to provide legal safeguards to protect an individual’s life and to maintain the good health of the community. However, this life-saving objective of the State may run counter to certain religious beliefs and practices. Maintenance of good health of the public requires on the part of the state to take measures to prevent infectious diseases. Religious beliefs cannot contravene State regulation on this matter. Sections 269 and 270 of the Indian Penal Code, for instance, empowers the State to take punitive action against a person who is likely to spread such infections unlawfully and negligently.

In connection with the debate at hand, the Epidemic Diseases Act, 1897 is of extreme importance. Section 2 of the Act gives the State power to take special measures and prescribe regulations as to dangerous epidemic diseases if they feel that ordinary provisions of the law are insufficient for the purpose. Section 4 of the aforementioned Act also declares that no legal proceedings can be initiated against a person who acted in good faith under this act. Keeping aside the controversial nature of the Act itself, if any practice, religious or otherwise, is debilitating for the health of the individuals of the country, the state may choose to put a stop to it till it deems appropriate. And this is what the BMC indeed did.

PROCEDURE FOR PROTECTION GIVEN BY GOVERNMENT:

The root of the issue, however, is whether burial of Covid-19 victims is indeed unsafe for the people for which we need to consider how the virus spreads. According to the World Health Organization, “It is an acute respiratory illness transmitted between people through droplets and close contact, with possible spread through faeces. It is not airborne.” Thus, it requires bodily fluids of the infected person to come in contact with another person in order to be transmitted.

The Ministry of Health and Family Welfare assured the people that healthcare workers or family members of the victim would not be exposed to any additional risks of contracting the disease from the dead body if they followed the proper procedure laid down. It includes sensitising the cremation or burial ground about any risks; the people carrying out the procedure must wear masks and gloves as well as follow strict hand hygiene. A large gathering must be avoided and the relatives cannot indulge in any religious rituals which involve touching the body. The health care professionals at the hospitals should use Personal Protective Equipment while placing the body in a leak-proof plastic bag after decontaminating with 1% Hypochlorite. Given this procedure, it can be concluded that, if adhered to properly, the risk of further contamination during burial would not exist. In fact, the World Health Organisation had also brought out recommendations for infection prevention where it stated that “only the lungs of patients with pandemic influenza if handled improperly during an autopsy, can be infectious, it is a common myth that persons who have died of a communicable disease should be cremated, but this is not true. To date, there is no evidence of persons having become infected from exposure to the bodies of persons who died from COVID-19.”

It also reminded the governments in countries around the world that a family’s choice to bury or cremate their deceased relative is based on cultural considerations and must be respected and treated with dignity. The issue seems to have been solved. So why does the question still persist?

PERSISTING PROBLEMS:

What we need to remember is that these considerations depend heavily on the assumption that the procedure would be followed by the people. However, it would be foolhardy of us to expect strict adherence by people in all corners of the country. It is evident that there are cities where they do not have the resources required to carry out a burial according to the procedure laid down by the Government.

It is no secret that many hospitals have reported shortages of PPE. Utkarsh Sinha, managing director at Bexley Advisors says, “It is easy to have the benefit of 20:20 hindsight, but the sad truth is that our health care infrastructure is stressed and has been for a while. We simply lack the capacity for providing adequate care at scale. That said, there is little more the establishment could have done to ensure equitable access in this situation.” In this situation, it is hardly to be expected that people would be able to access a sufficient number of masks and sanitizers, amongst other things, to carry out burial in accordance with the proper procedure. In addition, burials in localities which are heavily populated may also pose risks to the health of the people residing there.

SUGGESTIONS AND CONCLUSION:

These reasons prove to be adversities in the face of the deadly virus and make it significant that we come up new proposals for disposal of dead bodies so as to reach a meeting point where religion and safety of the people, both are taken into consideration.

In the United States of America, the procedure being followed is highly cautious. The decedents not claimed from temporary storage by a funeral home within 14 days would be interred at the Bronx’s Hart Island, hart Island is home to a graveyard called City Cemetery, which contains more than 1 million unclaimed bodies – the largest such site in the U.S. Elsewhere in Spain, there is a strict ban on large gatherings which has made drive-thru funeral a common sight in the capital city of Madrid.

While it may not be possible to do the same in India, certain similar methods may be employed to safeguard the lives of the people and allay their fears. Instead of burying the deceased in cemeteries around crowded areas, it would be more prudent to do so in areas sparsely populated. The healthcare workers in the hospitals must pay heed to the guidelines laid down by the Government. In case an autopsy is conducted on a suspected COVID-19 case, it must be done vigilantly, being mindful of all prescribed precautions. In addition to it, the measures proposed by AIIMS, Delhi should be considered too.

If proper PPE is not available, makeshift protective equipment should be arranged for all personnel employed in the hospital. The family members must be sensitised regarding their role in the burial process, ensuring that they maintain a proper distance from the body. For instance, in Kerala, the burial of a COVID-19 victim was conducted according to the protocol, even taking special precautions, with only five relatives watching as the body, covered in a triple-layer body bag was buried in a ten feet deep grave. Taking a leaf out this case, funerals of COVID-19 victims can be held employing these safety measures, which would be extremely helpful to curb the spread of the disease as well as satisfy the religious needs of the people, thereby finding a satisfactory common ground.

However until such measures can be devised which ensure the safety of health and well being of the citizens of the country, the religious communities must make certain compromises to accommodate the needs of all. Certain rituals must be forgone to avoid the transmission of the killer disease, and while cultural and religious considerations are indeed important, in times of such pandemics, the thought of civilization must take the forefront.

We need to ensure that the procedure put out can be followed, for, in these testing times, caution is the word which must be at the forefront of our minds, for the future is highly uncertain and we need to act with the thought of the predicament the whole of humanity is finding itself in today.

ABOUT THE AUTHOR

Garima Chauhan

Garima Chauhan is a first-year law student of National Law University, Jodhpur and a recipient of the 2019 Aditya Birla Scholarship. She has an interest in legal research and writing and hopes to contribute more to it in future.