The rights of dead persons and the right to water in India on the occasion of COVID-19

The rights of dead persons and the right to water in India on the occasion of COVID-19

by Nabil Iqbal and  Mohd Altmash

 

Source: Gettyimages


Amid the spike of COVID-19 cases in India during the second wave of the pandemic, various
Indian media (see f.e. The Hindu and Indian Express) reported the visuals of uncounted human dead bodies floating in the river in the state of Uttar Pradesh and Bihar. These reports received worldwide coverage and the India’s government was criticized for failing to dispose of bodies respectfully. On 14 May 2021 the National Human Right Commission of India issued a notice to  Central and State Governments advocating for the rights of the deceased and directed them to prepare a standard operating procedure for the proper burial of COVID-related deceased in order to maintain their dignity.

Further, a petition was filed before the Supreme Court of India (SC) on June 2, 2021 alleging that the ongoing situation amounts to the violation of human rights that will be summarized in the lines that follow.

Rights of Dead Persons

There is no specific legislative framework in India that protects the rights of people who have died. However, several judicial pronouncements of the SC and the High Courts (HC) have recognized the rights of the deceased and have included them within the purview of Article 21 of the Indian Constitution that manifold the horizons of right to life. These rights include the right to die with dignity and the right to have a decent burial.

Right to die with Dignity - The most representative case on the right to die with dignity is Pramanand Katara v Union of India (U.O.I.), where the SC had explicitly held that the right to life and dignity extends not only to living persons but also to their dead bodies. Further, through judicial activism, the Madras HC opined that “the right to life enshrined in Article 21 cannot be restricted to mere animal existence. It means something much more than just physical survival”. Interpreting this view, the Calcutta HC in Vineeta Ruia v The Principal Secretary, West Bengal, held that the right to dignity guaranteed under Article 21 is not limited to living persons but also to their remains after death.

Right to have a decent burial - The question regarding the right to a decent burial was raised in Vikash Chandra v. U.O.I. In this case, the Patna HC held that it is the responsibility of the government to provide decent burials in compliance with the law and in respect for human dignity. Later, the SC in Ashray Adhikar Abhiyan v. U.O.I. recognized the right of decent burial as a fundamental right within the right to life.

At the international level, the rights of dead persons are not explicitly enshrined in International Human Rights (IHR) laws but there are certain provisions that indirectly recognize their rights. These provisions include - a) the United Nations Commission on Human Rights resolution of 2005 that emphasized the significance of management of human remains in a dignified way, along with their disposal respecting the needs of the families; b) the Universal Declaration on Bioethics and Human Rights, which mentions that special measures should be taken regarding the rights and interest for those who are incapable of exercising their autonomy.; c) the UN’s Inter Agency Standing Committee’s Operational Guidelines on Human Rights and Natural Disasters recommend that appropriate measures should be taken ‘to facilitate the return of remains to the next of kin. Measures should allow for the possibility of recovery of human remains for future identification and reburial if required’; d) Article 3 (a) of the 1990 Cairo declaration on Human Rights in Islam provides “in the event of the use of force and in case of armed conflict- it is prohibited to mutilate dead bodies.”

The Geneva Convention of 1949 of International Humanitarian Law (IHL) explicitly recognizes the rights of dead soldiers under Article 16. Even the World Health Organization (WHO) has issued detailed guidelines and protocols for the proper management of the corpses in a dignified manner.

In contrast to IHL, international human rights law does not contain any express references to the treatment of dead bodies including the rights of the dead and obligations of states. However, in the vast majority of states including India, the rights of  dead persons and offence against dead person have been incorporated under domestic legislation.

Right to clean water

Apart from the violation of rights of dead persons, the dumping of dead bodies in the river amounts to a violation of the right to clean water, which has been recognized both by municipal and international law. The right to clean water and a healthy environment is recognized and guaranteed under Article 21 (Right to life) and Articles 48 & 51A (g) (Protection of environment) of the Indian Constitution by liberal interpretation of the Indian Judiciary. In the landmark case of MC Mehta v U.O.I., the SC has explicitly ruled that the right to clean water and healthy environment is a fundamental right under Article 21 of the Indian Constitution. The SC has reiterated the same in various subsequent judgments (Narmada Bachao Andolan v U.O.I; Bandhua Mukti Morcha v U.O.I.; Subhash Kumar v State of Bihar).

Furthermore, the Water Prevention and Control of Pollution Act(1974) and the Environment (Protection) Act (1986) are significant legislations in India that outline measures for clean water and healthy environment.

In international law, the right to water has been recognized by  Resolution 64/292 of the United Nations General Assembly, acknowledging the right to clean water as essential for the realization of other human rights.  Similarly, the Human Rights Council in the UNGA Resolution 70/169, approved resolution 15/9 in which the Council stated that the human right to safe drinking water is stemmed from the right to an adequate standard of living. This right is also connected to several other rights namely the right to life, right to highest attainable standard of physical and mental health.

The 2030 Agenda for Sustainable Development, adopted by the United Nations General Assembly in September 2015, comprehends 17 Sustainable Development Goals (SDGs). The 2030 Agenda addresses specific reference to human rights, equality, and non-discrimination principles. The SDGs are universal and goal-oriented in nature. Further, they apply to all countries and all peoples around world. The SDG framework contains a dedicated goal (SDG 6) for water and sanitation: “ensure availability and sustainable management of water and sanitation for all. Further, The Human Rights Council in 2018 prompted development partners to take up an approach which relies solely on human rights. As such, it would be useful while designing, implementing, and monitoring programmes backing national activities associated to rights to water and sanitation.

In addition, these rights have also been recognized in the Universal Declaration of Human Rights (Article 25), the Convention on the Elimination of All Forms of Discrimination against Woman (Article 14(2)(h)), and the Convention on the Rights of the Child (Article 24(2)).

India has implemented the provisions regarding the right to water in the strict sense. As discussed earlier, the right to water was not initially recognized by the legislatures or the constitution, but the Indian judiciary has declared it as a fundamental right that cannot be compromised at any reason.

Conclusion

In spite of various judicial pronouncements and legal frameworks, these rights are being violated in India. The above-mentioned incident is one of the examples of such violations. Such a negligent act could have serious consequence in the future. Therefore, the government should strengthen laws that could protect the rights of human beings (including the dead). At the same time, it is also necessary to pay attention to deteriorating environmental conditions, especially the ecology of rivers, that is being affected due to the such negligence of individuals or agency of the state.

Bios

Nabil Iqbal is a final year undergraduate law student from Jamia Millia Islamia, New Delhi, India. He has a strong interest in International Human Rights, Environmental and Humanitarian Law.

Mohd Altmash is an undergraduate student of B.A.LLB. from Jamia Millia Islamia, New Delhi, India. His areas of interest include International Law along with Human Rights and Constitutional Law.

Stranded Australians take to the Human Rights Committee: Winning before losing?

Stranded Australians take to the Human Rights Committee: Winning before losing?

By Kris van der Pas


Source: Pexels, photo by Catarina Sousa

Since the start of the COVID-19 pandemic, travel restrictions have become a normality rather than exceptional. Due to these travel restrictions, many people have been unable to return home. A strict travel regime has been adhered to by Australia, as ‘flight caps’ have been introduced. Since the start of the pandemic, 500.000 Australians abroad have returned home. Nevertheless, over 34.000 people are still outside the country and unable to return. Several blogs have already addressed the problematic aspects when it comes to COVID-19 measures and human rights in general (see for example here and here), but a few Australians have now actually lodged a complaint about these Australian flight caps with the UN Human Rights Committee (hereafter: HRC). They argue that their inability to return home is against art. 12(4) ICCPR, as ‘no one shall be arbitrarily deprived of the right to enter his own country’. Mid-April, their complaint was communicated to both parties, Australia and two individuals, and an interim measure was ordered by the HRC to the Australian authorities: to return the applicants in question home. Australia has not followed up on these interim measures, as it is confident that it is “operating in line with its international legal obligations". In a different blog, the substantive aspects of the right to enter one’s own country in COVID times have been addressed in detail. Based on this, the complaint of the Australians stands a chance before the HRC. However, several problematic procedural aspects remain.

A first problem for the applicants would be the timeframe of the case. Australia has six months to submit a written reply to the communication of the HRC to the parties, according to Rule 92 of the HRC’s Rules of Procedure. It is most likely that by the time six months have passed, the applicants have returned home, leaving the reason to file the complaint in the first place useless. It could of course be that Australia decides to move along rather swiftly and provide the reply much faster. At that point, another problem would arise for the applicants: they did not exhaust domestic remedies, but in the Australia case some argue that none are readily available. According to human rights lawyer Geoffrey Robertson, who supports the applicants of the complaint, Australia does not have a ‘bill of rights’, leading him to contend that there is no domestic remedy available. However, although Australia has not passed a national law implementing the ICCPR, there is at the national level the possibility to file a complaint with the Australian Human Rights Commission. Moreover, not having a bill of rights does not mean that national litigation cannot be started at all. As Robertson’s argument will therefore likely not fly with the HRC, the question remains why the Australians lodged the complaint at all, also given the potentially long timeline of the case.

There are several possibilities why the Australians filed their complaint with the HRC despite the low chances of winning.  I would like to explore those possibilities here. They are related to the use of strategic litigation, litigation pursued as a strategy to obtain social, political or legal change beyond the individual case or individual interest. In strategic litigation, winning a case on the merits might not always be necessary to achieve the objective. This complaint to the HRC could show that. The first reason to make the complaint has been mentioned already, namely the interim measure ordered. Potentially, the idea behind the complaint was only to get the HRC to order interim measures. If Australia would have followed up on these measures, the applicants would have gotten what they wanted: a return home. Winning the case on the merits would, thereafter, no longer be relevant.

The second reason is reminiscent of an article written by NeJaime in 2010. In his article, NeJaime proposes to not only look at instances in which (strategic) litigation is won in academic scholarship, but also to take into account the effects of losing litigation. He calls this ‘winning through losing’, meaning that even though a case is lost, the overall objective why litigation was initiated could still have been achieved. An example would be generating media attention for a certain topic. A case that is lost, can still draw a lot of media attention. Building on NeJaime’s argument, the complaint of the Australians to the HRC can be regarded as an instance of potentially ‘winning before losing’.  Despite the fact that the complainants did not exhaust domestic remedies -  making their case extremely difficult to be admissible to the HRC -  the complaint was filed anyway. Two of the potential positive effects of losing litigation described by NeJaime are relevant in the context of the complaint against Australia. These are the internal effect of mobilizing outraged constituents and the external effect of appealing to the public. Lodging the complaint has generated more media attention for all Australians abroad, as is shown by several news items (see here and here). This could have mobilized constituents, i.e. other ‘stranded Aussies’, who could have been spurred on to explore legal and other avenues to ensure their return home. Moreover, the media attention has made a broader public aware of the unfortunate situation of these Australians, which in turn could influence political pressure on the Australian government.

A last interesting observation to make is that the interim measures ordered have been used by the group Free and Open Australia to argue that the HRC has ruled that Australia must allow all stranded Australians to return home. This (incorrect) framing of the complaint and the interim measures show the potential of strategic litigation, without having to win a case on the merits.

Bio: 

Kris van der Pas is a PhD candidate at Radboud University Nijmegen. Her research focuses on strategic litigation, mainly in the field of asylum law. Within this topic, she is especially interested in the approach taken (by NGOs) within strategic litigation.

The right to protest in the COVID-19 era: The case of Greece

The right to protest in the COVID-19 era: The case of Greece

By Evangelia Romanou

Source: AP news

The outbreak of the pandemic has certainly turned our daily lives upside down and we have witnessed a great number of our freedoms and fundamental rights being limited or even banned. Among the rights that have had serious and, in some cases, unjustifiable restrictions, is the right to protest, which consists of the right to freedom of association, peaceful assembly and expression. This article aims to examine the proportionality of the measures adopted by the Greek Government for the protection of public health, associated to the right to protest. More...

Doctoral Research Forum Blog Series: Part II

'On the brink of a catastrophic moral failure' - not the time to abandon international law

by David Patterson
source: by focusonmore.com via ccsearch

In January 2021 the Director-General of the World Health Organization, Dr Tedros Adhanom Ghebreyesus, delivered a blunt message at the opening of the 148th session of the WHO Executive Board: ‘The world is on the brink of a catastrophic moral failure – and the price of this failure will be paid with the lives and livelihoods of the world’s poorest countries.’ Dr Tedros was referring to the rich countries’ decision to prioritize COVID-19 vaccine access for their own younger, healthier adults over health workers and older people in poorer countries. He further stated, ‘Vaccine equity is not just a moral imperative, it is a strategic and economic imperative.’ These points are well-taken – a world divided between the COVID-19 vaccine ‘haves and have-nots’ will likely be less safe and less economically secure and productive. More...

Doctoral Research Forum Blog Series: Introduction

Doctoral Research Forum Blog Series: Introduction

by Stephanie Triefus
Source: Shutterstock
In February 2021, eighteen PhD researchers based around the Netherlands gathered online to share their research. Despite the inevitable ‘Zoom fatigue’ faced by all after nearly 12 months of pandemic living, these diligent researchers dedicated a colossal two full days of screen time to supporting their colleagues, listening intently to one another’s presentations and asking insightful questions. They were joined by several senior members of the Network, who provided their wise reflections on the topics discussed while gently and genially pushing the participants onwards in their research journeys. Participants reported that the Forum provided ‘useful feedback, a safe environment and inspiration’ in an otherwise isolating time. This blog series details the research of some of these participants, and covers a wide range of current topics related to human rights. 

Human rights is a marathon

Interview with Nils Muižnieks

for

International Human Rights Day 2020

Part I

By Silan Celebi and Felisa Tibbitts

 

The current Regional Director for Europe of Amnesty International, Nils Muižnieks, joins Human Rights Here in an insightful interview for Human Rights Day. He has a message for human rights academics and workers everywhere: “keep learning, get out of your comfort zone, take care of your health – human rights is a marathon, not a sprint.”

Nils Muižnieks is a Latvian-American political scientist and human rights expert. He lives an inspired life with numerous milestones to share, from being elected as the Commissioner for Human Rights of the Council of Europe, to becoming the Regional Director of Amnesty International. Muižnieks has over twenty-five years of experience in various intergovernmental organizations, government and academia. For Nils, working for human rights is the most meaningful thing you can do in your professional life, “I always like myself best when I am doing human rights work, it is the best me.”  

More...

Listen to children and young people to make their rights reality

Source: Étienne Godiard via Unsplash

Interview with Majorie Kaandorp, UNICEF Netherlands on the occasion of

World Children's Day 2020

By Janna Beijers & Stephanie Rap

 

Can you explain what you do at UNICEF NL? What is your central focus/passion in your work?

Currently, I am the manager of a team that focuses on a number of themes concerning children's rights in the Netherlands. This includes the mental well-being of teenagers, the implementation of the UN Convention on the Rights of the Child in the Netherlands, i.e. NGO reporting to the UN Committee on the Rights of the Child,  and on migration and refugees. We also look at the impact of the corona crisis on children. Education and participation specialists who create educational material on children’s rights and organise participation projects are also part of the team.

In May this year UNICEF published a report about the impact of the Covid-19 crisis in the Netherlands. What were the most important impacts you found?

We drafted this report in cooperation with Leiden University. Within this report we looked at several critical points that were influenced by Covid-19: poverty, violence, education, migration, mental health, youth care, youth criminal law, and the situation on the Dutch Caribbean islands.

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Assessing India’s Response to Surge in Domestic Violence Cases Amidst COVID-19 Lockdown

 Source: Pixabay

Manvi Khanna

National Law University Odisha, Cuttack

https://www.linkedin.com/in/manvi-khanna-6a960815b/

In the midst of the ongoing COVID-19 crisis, the surge in cases of gender-based violence globally is another shadow pandemic and public health emergency that requires intervention by governments across the world. Nationwide lockdowns imposed as a containment measure have forced people to stay indoors for their safety as well as that of others. Unfortunately, homes are not the safest places for victims of domestic violence. Every third woman in the world has been physically abused by her spouse/partner. As per the recent statistics, during the 68 day period of lockdown (25 March 2020 to 31 May 2020) in India, 1477 complaints were made to the National Commission for Women, which is the highest number of complaints recorded during the similar time period in the last ten years, keeping in mind the fact that around 77% of the cases in the country go unreported.

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Contact tracing application vis à vis digital rights in a COVID-19 India


Source: iXimus - Pixabay

Ritwik Prakash Srivastava

National Law Institute University, Bhopal, India

ritwiksrivastava.ug@nliu.ac.in

In the wake of COVID-19, the Indian government launched and mandated the use of a contact-tracing application, Aarogya Setu (smart phone application). The Indian Prime Minister, Narendra Modi, in his address to the nation on 14 April 2020, urged the citizens to download the application to supplement the State’s struggle against the contagion. What started as a voluntary step, was first made mandatory for employees of the public and even the private sector, and then for entire districts. Failure to do so gives rise to a criminal penalty.

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Tackling violence against women in the Netherlands: some thoughts on the GREVIO baseline report on the Netherlands


Photo credits: Anthony Tran - Unsplash

Adriana van Dooijeweert

President, Netherlands Institute for Human Rights

Introduction

Just like everywhere in the world, also in the Netherlands violence against women is a widespread and serious problem. The Netherlands Institute for Human Rights (the Dutch national human rights institution) has had this issue on the agenda since its establishment. It has, for example, encouraged the Netherlands to ratify the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) and discussed with Dutch government officials and professionals, on various occasions, the human rights aspects of violence against women.

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