Observing that the dead have a right to a decent burial as per their religious rites, the Bombay High Court on Friday upheld the validity of a notification of the BMC allowing burial of Muslims who have succumbed to COVID-19.
The High Court upheld the notification for want of scientific material which proves that the deadly virus can be transmitted even through bodies. A bench of Chief Justice Dipankar Datta and Justice Sambhaji Shinde slammed the former BMC chief Praveen Pardeshi, who had initially issued a circular prohibiting burial of bodies, irrespective of the religion of the deceased.
"The right to dignity and fair treatment under Article 21 of the Constitution is not only available to a living man but also to his body after his death. Right to a decent burial, commensurate with the dignity of the individual, is recognised as a facet of the right to life guaranteed by Article 21 of the Constitution," CJ Datta said while referring to a judgment of the Supreme Court.
"There is, thus, no reason as to why an individual who dies of Covid-19 during this period of crisis would not be entitled to the facilities he/she would have otherwise been entitled to but for the crisis. We find little reason to deprive the dead of the last right, i.e., a decent burial according to his/ her religious rites," CJ Datta held.
The bench further said that there is no evidence -- at least at this stage -- that COVID-19 infection may spread to living human beings from the cadaver of any suspected or confirmed COVID-19 infected individual.
The observations were made while disposing of a clutch of petitions, filed by residents of suburban Bandra, challenging the decision of the BMC to allow burial of Muslims who have died due to COVID-19 in the Kokani Muslim Qabristan.
They feared community transmission due to the burial of infected bodies. The bench relied upon the guidelines issued by the World Health Organization, which did not prohibit burial of COVID victims.
These guidelines were cited by BMC counsellor Anil Sakhre while justifying the April 9 notification of the civic body.
"Even according to the WHO, there is no evidence of persons having developed infection from exposure to the cadaver of a suspected/confirmed COVID-19 individual. That apart, the recommendations of the WHO are clear that people who have died because of COVID-19 infection can either be buried or cremated," CJ Datta noted in his order.
"If indeed there was indeed such a risk, the risk involved in treating COVID-19 infected patients by the medical and the para-medical staff, who are the frontline workers, would be much greater. Are such staff shying away from treating COVID patients? The answer must be an emphatic 'no'," CJ Datta remarked.
While dismissing the contentions of the Bandra residents, the bench said these residents were insensitive to the sentiments of the community. The bench slammed Pardeshi for notifying such an "illegal" circular.
It said that instead of relying on the advice of a community leader, Pardeshi would have been well advised to proceed for a scientific management of disposal of cadavers of infected individuals in accordance with the recommendations of the WHO.
