The rights of dead persons and the right to water in India on the occasion of COVID-19
by Nabil Iqbal and Mohd Altmash
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.
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.
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.