TRANSGRESSION TO THE RIGHT OF A DIGNIFIED DEATH IN THE LIGHT OF THE PANDEMIC
Author: Neena Susan Babu, II year of B.A.,LL.B.(Hons.) from Faculty of Law, Banaras Hindu University
“Death must be so beautiful. To lie in the soft brown earth, with grasses waving above one’s head and listen to silence. To have no yesterday and no tomorrow, To forget life, to be at peace.”
-Oscar Wilde
The onslaught of the second wave of covid-19, however, tells a different story. The holy river was swollen with corpses, on their way to seek the heavenly abode. Bereft of a dignified death, these corpses fail to occupy the official death rate released by the government. In this article, the author expounds on the right to a dignified death and the trampling of this right, which was prevalent during the pandemic.
Historical Instances
Throughout the ages, the sight of the dead has unnerved humans. Particularly, the outbreak of an epidemic leaves a ghastly image of the disposal of the dead as witnessed in the Spanish flu of 1918, where corpses washed ashore the Narmada in thousands or the burial of dead in heaps during the Black plague. Although much water has flown under the bridge, man is still overpowered by his initial fear. A case in point here is the Nipah outbreak in Kerala (2018), where workers refused to cremate the bodies of the victims. The government intervention in dispelling the myths surrounding the virus provided much-needed relief for the victim’s families.
Legal position
Tracing the origin
In 2015, the European Court of Human Rights, delivered in the case of Lambert and others Vs France, that ‘Right to Die with Dignity ‘ falls within the purview of ‘Right to Life’. Although there was much spat on the issue, with various interpretations by regional courts, the dust was settled with this pronouncement. The judgement was in line with Article 2 [Right to Life] and Article 8[Right to respect for private life], two cardinal principles of the European Convention of Human Rights. Besides, the judgement became a pillar stone of human rights and influenced various other court judgements outside Europe as in Common Cause Vs Union of India (2018) 5 SCC 1, AIR 2018 SC 1665.
The august court ruled in the above case, that a person of sound mind and good health, may record his wish, to not spare his demeaned life (in case of terminal illness), at any stage of his life; by disrupting life-sustaining treatments. The judgment invoked the decision in K.S Puttaswamy and Anr. Vs Union of India (2017) 10 SCC 1 (established Right to Privacy as a fundamental right). Furthermore, the aphoristic suggestion made by the US court in the Re Quinlan Case that ‘when bodily integrity was increasingly violated and chances of recovery lessened, the right to privacy increased and state interest dimmed ‘, served as a guiding light in concluding. However, it was article 21 of the Indian Constitution (Right to life and personal liberty), that acted as a linchpin in establishing the right to die with dignity as a fundamental right.
Moreover, the Supreme Court ruling in Parmanand Katara Vs Union Of India 1989(W.P(Crl.)No.270 of 1988 SCC(4) 286) laid down that dignity was also conferred to dead people. P.Rathinam Vs Union Of India 1994 (SCC (3)394) reinforced it by expanding the ambit of right to dignity under article 21 to the dead.
A Kaleidoscopic View on Epidemics and Loss of lives
The interrelationship between the outbreak of epidemics and climate change is indisputable. The rise in global temperature generates conditions favourable for the thriving of infectious agents. This increases the susceptibility of future generations to contract new diseases or to revive the extinct ones. With the conditions to flare up a contagion ripe enough, it is necessary to revisit the extant provisions regarding the funeral rites and bereavement of the deceased. The past decade has already witnessed scores of epidemic outbreaks with Ebola and Covid -19 catching the headlines. Human rights have been thrown to the wind during these times. Gripped by the fear of infections , hospitals turned their back on Ebola victims, with most left to die at the hospital doors.
Another ignominious happening that played out amid the rampage of the coronavirus, was of gangs stealing the shroud of covid victims. Despite the National Human Rights Commission issuing an advisory on the covid-19 protocols, the incident testifies that the same has been violated. The incident also runs counter to the Resolution adopted by the UN Commission on Human Rights in 2005, which underscores the importance of the dignified handling of human remains.
The pandemic was also witnessed to the confrontational relationship between the right to practice religion and the right to health. Lately, Sri Lanka was caught in a furore over the compulsory cremation of Muslim covid victims, which is contrary to their religious customs. On that note, the directory released by the WHO Regional Office for South-East Asia on the Disposal of dead bodies in emergency conditions emphasizes that relief workers need to take into consideration the wishes of families to observe cultural and religious practices that are usually practised on death. In line with it, Madras High Court has held in the case of S.SethuRaj Vs Chief Secretary (W.P(MD) No.3888 of 2007) that burial at home should take place by traditions and customs. In recent times, the Bombay High Court has upheld the dignity of the dead by taking a strong stance to the delay in cremating covid victims.
UN Committee on Economic, Social and Cultural Rights has set down that right to health is inextricably linked to various other rights including the right to work, human dignity, life, non-discrimination, equality etc. The skewed vaccination rates point out that while the rich world is hoarding vaccines, the poor are missing out on their jabs. The onus is therefore on the developed nations to ensure a fair vaccination for all.
It is not lost on us that our predecessors had followed a decorated set of procedures to secure the dead, a peaceful journey to the ‘next world’. If not revert to the age-old customs, let us secure the dead a dignified end.