The Rights of The Dead And Last Rites: All You Need To Know

The Lucknow bench of the Allahabad High Court on Thursday took suo motu cognizance of the incident in Hathras, Uttar Pradesh where police officials cremated the body of a 19-year old Dalit girl who was allegedly gang-raped by four upper-caste men from the same village. However, Hathras SP Vikrant Vir denied claims of the victim showing signs of sexual assault and her tongue being cut.

On October 1, a division bench of the high court issued notice to the State and police administration directing them along with the members of the victim's family to submit the facts of the case on October 12.

In its 11-paged order, the high court observed that the issue was "of immense public importance and public interest" involving claims of high-handedness by State Authorities resulting in violation of basic human and fundamental rights.

Incidents taking place after the victim's death "leading up to her cremation" have "shocked our conscience", the HC said in its order. Relying on the news reports, the high court said if the events surrounding the Hathras incident and the post-midnight cremation "if true", was tantamount to perpetuating the family's misery and "rubbing salt in their wounds".

The high handedness of the UP police in Hathras on September 29 and the events that have unfolded thereafter have raised a burning question: Does the Police have a right to cremate a body against the family's wishes?

The answer is no.

Who has the rights to a dead body?

According to the Punjab Police Rules, 1934 (these rules also govern Delhi Police, but not UP Police) "as soon as a civil surgeon has intimated that his examination is complete, the police shall, unless they have received orders from a competent authority to the contrary, makeover the body to the deceased's relative or friends…".

In medico-legal cases, in cases of death, doctors conduct a post-mortem and when permitted, the body is handed over to the kin of the patient, the dean of a leading Mumbai hospital told BOOM. "The body of a deceased is handed over to the police only in cases where the death is a result of novel coronavirus", he added.

If the body is not claimed by the family/friend, the police shall cause the body to be buried or cremated according to the rules framed in this behalf by the District Magistrate.

In cases of unidentified bodies, the investigating officer has to record a careful description of the body noting all marks, peculiarities, deformities and distinctive features, take fingerprints and if possible, take reasonable steps to secure identification.

Often, in newspapers, we see photographs of dead bodies advertised by the police requesting citizens to come forward and identify the same.

Also Read: India's Hindi Heartland Has A Gangrape Problem

In an interview with BOOM, senior advocate Indira Jaising reiterated this finding and said only the family or the next of kin have rights. Referring to the Hathras incident, Jaising said, "So all legal procedures ought to be completed at Safdarjung Hospital, after which the body could have been handed over to the relatives, I see no explanation for handing over the body to the police. They don't own a dead body. The state has no claim to anybody's dead body except for the purpose of the criminal investigation, which supposedly completed after she was released from Safdarjung Hospital."

Right to Dignity extends to the dead

Under Article 21 of the Indian Constitution, the fundamental rights of a person extend to the dead as well. In 1995, the Supreme Court, in Parmanand Katara (Pt.) verdict recognised "that right to dignity and fair treatment under Article 21 of the Constitution of India is not only available to a living man but also to his body after his death."

In the 2002 Ashray Adhikar Abhiyan judgment, the apex court acknowledged the steps police officials and the administration took to provide a decent burial to a homeless dead person, in accordance to the faith and religion he belonged too.

"By our tradition and culture, the same human dignity (if not more), with which a living human being is expected to be treated, should also be extended to a person who is dead," the apex court said in its 2007 judgment in S. Sethu Raja vs The Chief Secretary. "There can be no dispute about the fact that the yearning of a father to perform the obsequies for his son who died in an alien land, is as a result of the traditional belief that the soul of a person would rest in peace only after the mortal remains are buried or burnt," the apex court said directing authorities to bring back the petitioner's son's dead body from Malaysia.

Article 25 of the Indian Constitution which grants Indian citizens the right to practice their religion also includes traditions and cultural aspects connected to conducting the last rites.

The Hathras incident where police officials cremated the body of the victim is unusual, advocate Shobha Gupta said. "What locus did the police have to take the body from the family and dispose of it?" Gupta asked. Gupta, who represented Gujarat riots rape victim Bilkis Bano said, "What happened in Hathras in the middle of the night cannot call it cremation, its simplicitor burning. "This kind of treatment is not even meted out to our pets. Do we ever do this? What they have done is completely unheard of in a civilized society. Here, police using all its authority, God knows where they got it from… but you can't glorify the act by calling it last rights, cremation, or an antim sanskar," she said.