DIGNITY OF DEAD, DYING AND LIVING: REVISITING INDIA’S CONSTITUTIONAL LAW AMIDST THE PANDEMIC
Author: Disha Sharma, II year of B.A.,LL.B.(Hons.) from Amity Law School, Noida
Over the beyond few months, amid a deadly pandemic, the sector grappled with the general country apathy and administrative mismanagement. And the failure of the disaster governance yielded violation and infringement of various Fundamental rights[i]. Whilst the right to life has become already disputed, the accelerated breaches in opposition to the dead received confined air time. The snapshots of bodies floating over the river bank and the mass under-reporting of deaths raised questions about the infrastructural lapses and the dearth of govt accountability. Reportedly, until June this year, India had stated extra than four million deaths out of 29.75 million corona virus cases. Therefore, with the growth in mortality charges in India, there has been a simultaneous growth withinside the want for cremations.
Dignity of the Dead
As outlined, the remedies meted out to the dead are disconcerting and revolting. Traditionally, the dead had been dealt with admiration and care, and intricate ceremonies have traditionally existed to deal with the dead with honor. However, all of that is challenged via way of means of the worldwide pandemic.
The dead have rights beneath Constitutional law. This concept has large acceptance, even though its contours are admittedly now no longer defined. The first occasion is that of mass graves. Various information reviews have proven mass dumping of bodies into massive pits, with the outright ceremony. The NHRC has taken recognition of mass graves as properly and has said that its miles a contravention of the rights of the dead[ii].
What are the rights of the dead under constitutional law? Under Article 21, the Right to Dignity and the Right to Fair Treatment does now no longer enlarge most effective to individuals who are alive, however additionally to the dead. It, in addition, cited that hospitals keeping again the bodies of the dead for the need of price changed into in opposition to the regulation.
This is tied to the regulation as properly. The Allahabad High Court dominated that the phrase person additionally extends to dead people to a constrained extent, however definitively consists of the proper to acquire the honor that they might have obtained had they been alive.
One of the maximum vital controversies is whether or not there may be a Right to Decent Funeral for the dead. In Ashray Adhikar Adhyan vs. Union of India[iii], the Supreme Court refused to issue a path however held that the Government has to take all steps so that you can make certain a decent burial. In S. Sethu Raja vs. the Chief Secretary[iv], the Madras High Court dominated that the dead had the right to a decent burial. The Madras High Court filed a suo motu case on identical grounds in the course of the pandemic.
While there may be a deep historic way of life respecting the dignity of the dead, little changed into heard of those rights earlier than the pandemic hit. We have been together ignorant of our dead earlier than the horrors of the worldwide pandemic. The pandemic has proven to us that our priorities had been misplaced, and we need to dedicate greater sources to make certain the sanctity of the dead.
Dignity of the Dying
The pandemic has absolutely demolished the medical system withinside the country. Beds are unavailable, ventilators are in brief supply, and oxygen is markedly absent. Those who might be on the brink of death are ever so nearer due to the dearth of material resources.
There are numerous humans who've both wished hospitalization or frequently visited the medical institution, now no longer best due to corona however additionally due to different medical requirements like dialysis. The revel in of such humans has been harrowing. Such sufferers are a number of the maximum susceptible humans and are at a heightened danger of contracting COVID. The situations wherein they want to go to hospitals in unsavory.
First, the hospital team of workers generally offers COVID instances and patients, and there may be an opportunity that patients and their own circle of relatives’ individuals might also additionally contract the disease.
Second, hospitals are generally premises in which there may be a huge number of humans with diseases, and there may be a few opportunities that the disease is a gift at the premises.
Third, patients that want to be hospitalized are frequently saved in common rooms with some of the different patients. Not only is there a danger of the disease transmission from the alternative sufferers, however, but this danger is also likewise big for the reason that there are visitors who could skip COVID unsuspectingly.
The rights of the dying are encompassed under Article 21 of the Indian Constitution. The Right to Life consists of the right to die because the Supreme Court said withinside the case of Aruna Shanbaug[v]. According to this case, Article 21 extends to a person taking a choice to give up their life (i.e. euthanasia). While the decision has been controversial, the proper to die thru passive euthanasia is now an essential right. The treatment meted out to patients has been heartbreaking. Patients must go through a big quantity of struggling interior hospitals and must pay big quantities of cash for ambulances. While criminal provisions to ameliorate those exist, the political will to put in force it's been lacking.
Dignity of the Living
The dwelling has been gravely impacted by the corona virus pandemic. Mental fitness problems have skyrocketed as human beings had been pressured to lock themselves up from their homes and seriously lessen human contact. There is continually the intellectual tension related to the opportunity of being infected, and additionally the overall downturn related to bodily confinement.
However, at the same time as the privileged have the luxury of staying in clean dwellings, the equal isn't actual for all. The migrant people, who stay in cramped and grimy quarters, have been seriously hit with the aid of using the primary wave of the virus. Not most effective did a maximum of them misplaced their jobs, however, they have been additionally demonized with the aid of using the privileged quantities of society for being ‘carriers’ and to pinnacle all of it off, did now no longer have any form of transportation or meals.
They have been supplied meals with the aid of using charities, and lots of them desired to go back to their houses, regularly in far-off villages. The Government refused to set up such facilities, and hence started one of the finest human tragedies of this era, in which migrants of every age walked loads of kilometers to their houses as that they'd no different option. Many of them died on the way. Shockingly, their plight became first of all given little attention, and the judiciary became reluctant to behave for his or her benefit. Today, the great tragedy has been largely forgotten, which speaks volumes approximately our constitutional values.
Did the migrant people now no longer have the right to life and different related rights under Article 21[vi]? Surely, they did, however, the human beings and the State together did not put in force them and feature recognition of them. The difficulty with India’s constitutional regulation isn't that its miles normatively lacking, however, that it's miles extraordinarily tough to put in force in practice. This is the important thing trouble with Indian Constitutional Law.
India’s Constitutional Law has been massive and specific and has been progressively interpreted. However, the pandemic confirmed the constraints of the placement and validated how restrained the ambit of the regulation was. For instance, the regulation regarding the dignity of the dead, even as it exists, is abysmal and now no longer exact. Before the pandemic, it did now no longer get hold of a big quantity of interest neither is it evolved enough. Considering the exalted status of the dead inside culture, that is an anomaly that has to be plugged on the earliest.
The demise and the dwelling actually have a catena of rights below the Constitution, especially below Article 21[vii]. While those are moderately evolved and exact, the primary trouble is the dearth of political will to enforce them. Though this has usually been the case, reporting throughout the pandemic highlighted the issue. The no different instance has been as stark as that of the trips of the migrant workers, whose rights had been together denied to them with the aid of using the relaxation of the country.
Politicians do not pressure hospitals due to the fact personal hospitals play a totally critical function and the foyer is pretty powerful. Unfortunately, this has brought about hospitals getting away with outrageous movements like intense overcharging, ill-remedy of patients, etc. Such movements are simply prohibited with the aid of using the Constitution, however for so long as political will does now no longer exist, the phrases of the Constitution will continue to be mere phrases and the aspirations of the Indian human beings will by no means be met.
[i]Gautam Bhatia, “Corona virus and the Constitution – XXXVIII One Year On,” Indian Constitution Philosophy, Mar 24, 2021. Available at https://indconlawphil.wordpress.com/2021/03/24/coronavirus-and-the-constitution-xxxviii-one-year-on/ [ii] Published on 14 may, 2021 on https://nhrc.nic.in/media/press-release/nhrc-issues-advisory-centre-and-states-ensure-dignity-and-rights-dead-14052021 [iii] Ashray Adhikar Abhiyan Vs Union Of India & Ors on 9 January, 2002 Latest Caselaw 12 SC [iv] S.Sethu Raja vs The Chief Secretary on 28 August, 2007 W.P.(MD)No.3888 of 2007 [v] Aruna Ramchandra Shanbaug vs Union Of India & Ors on 7 March, 2011, 4 SCC 454 [vi] https://knowlaw.in/index.php/2021/07/14/dignity-of-the-dead-dying-and-living-constitutional-law-pandemic/ [vii] https://knowlaw.in/index.php/2021/07/14/dignity-of-the-dead-dying-and-living-constitutional-law-pandemic/