Mishandling Of COVID-19 Affected Dead Bodies (Right To Life & Right to Die With Dignity)

INTRODUCTION

1. The Supreme Court on June 11, 2020 took suo motu cognizance of former Union Law Minister and Senior Advocate Ashwani Kumar's letter highlighting news reports about the undignified treatment and disposal of the bodies of COVID-19 patients. A three-Judges Bench led by Justice Ashok Bhushan has been assigned by the Chief Justice S. A. Bobde to examine the issue. Mr. Kumar wrote that indignity shown to the dead amounts to a "grave infraction of the citizen's right to die with dignity".

2. In Re the Proper Treatment of COVID-19 Patients and Dignified Handling of Dead Bodies in the Hospitals etc., Suo Motu Writ Petition (Civil) No(s). 7/2020 was scheduled to be heard on 12^th June, 2020 and the presiding corum included Hon'ble Mr. Justice Ashok Bhushan, Hon'ble Mr. Justice S K Kaul and Hon'ble Mr. Justice M.R. Shah. In Paragraph 1 of the said order, the bench assessed the media reports and programmes aired in several channels as evidences where patients were in the wards and the dead bodies were also in the same wards. Dead bodies were also seen in the lobby and waiting area. The patients were not supplied with any oxygen support or any other support; no saline drips were shown with the beds and there was no one to attend the patients.

3. The bench held that: "the Guidelines on Dead Body Management issued by the Government of India, Ministry of Health & Family Welfare, Directorate General of Health Services on 15.03.2020 which are in the nature of directives, we notice that there is no proper adherence to the guidelines nor the hospitals are giving due care and concern to the dead bodies. The patients' relatives are not even informed for several days of the death of the patient as has been reported in the media. It is also brought to our notice that the details of cremation as to when the dead body will be cremated are not even informed to their close relatives. Due to which the families of the patients are not even able to see the dead bodies or attend their last funeral rites. We, thus, issue notice to the Union of India, NCT of Delhi, States of Maharashtra, West Bengal, Tamil Nadu and Gujarat as well as to the LNJP Hospital in Delhi. We shall also consider issuing notice to other states, Government and Private hospitals subsequently. Mr. Tushar Mehta, learned Solicitor General accepts notice on behalf of the Union of India and Mr. Sanjay Jain, learned ASG accepts notice on behalf of the NCT of Delhi. Let notice be served to other States through the standing counsel of the States as well as through the Chief Secretaries of the State Governments. LNJP hospital, Delhi be also noticed through its Director. We direct that the Chief Secretaries of the States shall immediately take appropriate notice of the status of patients' management in the Government hospital in their respective States and take remedial action. Status report with regard to Government hospitals, patient care and the details of the staff, infrastructure, etc. should be brought before the Court so that appropriate directions be issued by the Court as found necessary on the next date of hearing".

4. In a disheartening video gone viral on social media where the civic workers of the Kolkata Municipal Corporation were seen dragging out decomposed bodies from the Garia crematorium after local residents protested of bad odour. Social media users have also alleged that these rotten bodies seen being pulled out with ropes, were those of COVID-19 patients.

5. Another video surfaced showing how dead bodies of COVID-19 victims at Lokmanya Tilak General Hospital were left in a ward for an extended period alongside patients. Much disagreement was raised regarding this incident; the BJP Leader Kriti Somaiya said "I have never seen such a horrendous situation [in Mumbai] where patients are made to share beds beside dead bodies. This causes severe psychological trauma among patients". On 7^th May, 2020 he has filed a complaint with ICMR.

6. In an incident in Puducherry, the health workers threw a dead body of COVID-19 patient in a pit for burial. This shocking incident violates Right to die with dignity which embraces right to decent burial or cremation, as a fundamental right under Article 21 of the Constitution of India.

7. Across the world, people have been raising their doubts regarding the mishandling of dead bodies of corona-infected patients in their respective countries. As on April 25, 2020, numerous lawsuits were filed against a Brooklyn-based Andrew Cleckley Funeral Home for allegedly storing 100 plus corpses in an unrefrigerated U-Haul trucks. In another instance, resident of Ecuador, Lenin Moreno has launched an investigation on April 8 for the management of bodies of people who died from coronavirus infection especially in the epicenter of the outbreak, Guayaquil. The Ecuadorean President even posted the letter on Twitter seeking an inquiry into the victims of COVID-19 disease after their families and friends flooded the administration with complaints of mishandling.

8. The question of law that arises here is whether Article 21 should include right to life, health as well as the right to die with dignity?

9. It has been rightly stated in the case of Ram Sharan Autyanuprasi v. Union of India 1989 SCC Supl. (1) 251 JT 1988 (4) 577, that "It is true that life in its expanded horizons today includes all that give meaning to a man's life including his tradition, culture and heritage and protection of that heritage in its full measure would certainly come within the encompass of an expanded concept of Article 21 of the Constitution".

RIGHT TO DECENT BURIAL UNDER ARTICLE 21.

1. The Madras High court heard a Suo Moto case (W.P. No. 7492 of 2020) and passed an order on April 20, 2020. A 2 Judges bench comprising of Hon'ble Justice M. Sathyanarayanan and Justice M. Nirmal Kumar observed that the Union Ministry and Family welfare, Science and Technology of Government, India has issued a summary of guidelines to tackle COVID-19. The MoHFW guidelines of Dead Body Management clearly provides for Standard Precautionary measures and the court underlined that, the right to life in article 21 cannot be restricted to mere animal existence and that it means something more than just physical survival. Every kind of deprivation thus infringes Article 21, whether such deprivation is temporary or permanent.
2. In Parmanand Katara, Advocate v. Union of India & Ors 1989 SCC (4) 286 JT 1989 (3) 496 , the Supreme Court held that "We agree with the petitioner 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. We thus find that the word and expression 'person' in Article 21, would include a dead person in a limited sense and that his rights to his life which includes his right to live with human dignity, to have an extended meaning to treat his dead body with respect, which he would have deserved, had he been alive subject to his tradition, culture and the religion, which he professed. The State must respect a dead person by allowing the body of that dead person to be treated with dignity and unless it is required for the purposes of establishing a crime, to ascertain the cause of death and be subjected to post-mortem or for any scientific investigation, medical education or to save the life of another person in accordance with law, the preservation of the dead body and its disposal in accordance with human dignity."

2. In another important case of Jamuna Das Paras Ram v. State of Madhya Pradesh AIR 1963 MP 106, with reference to Section 392 of the Indian Penal Code the High Court of Madhya Pradesh held that "the word person cannot be so narrowly construed has to exclude the dead body of human being, i.e. the human body must be given the right, irrespective of being alive or dead".

3. The right to safety and dignity that is given to a person under Article 21 of the Constitution of India is mainly for the safety and dignity of the body of that person and to prevent any crime or harm that may be caused against it. Similarly, the body of the dead too must be respected and assured safety and dignity because irrespective of a person being alive or dead, a third person does not have the right to cause harm to the body of another.

4. Aspect to be kept in mind is the violation of Section 297 of the Indian Penal Code. Section 297 reads as "Whoever, with the intention of wounding the feelings of any person, or of insulting the religion of any person, or with the knowledge that the feelings of any person are likely to be wounded, or that the religion of any person is likely to be insulted thereby, commits any trespass in any place of worship or any place set apart for the performance of funeral rites or as a depository for the remains of the dead, or offers any indignity to any human corpse, or causes disturbance to any persons assembled for the performance of funeral ceremonies, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both".

5. The case in Puducherry and another order given by Bombay HC on 22^nd May emphasizes that, "Right to a decent burial, commensurate with the dignity of the individual, is recognized as a facet of the right to life guaranteed by Article 21 of the Constitution. There is, thus, no reason as to why an individual who dies during this period of crisis because of suspected/confirmed COVID-19 infection would not be entitled to the facilities he/she would have otherwise been entitled to but for the crisis".

6. Moreover quality care standards must be necessarily derived from the guidelines provided by National Accreditation Board for Hospitals & Healhcare Providers (NABH). It states that Healthcare must abide by the latest standards, norms and guidelines under the National Accreditation Board for Hospitals.

DECENT MEDICAL FACILITY UNDER ARTICLE 21: RIGHT TO LIFE.

7. The decent medical facility is an integral part of Article 21 of the Constitution of India and it is mandatory duty on the part of the State, to ensure such a priceless right. Decent medical facility includes cleanliness in the hospital, adequate care, medical treatment and accommodation etc.

8. Article 39(e) clearly states "that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength".

Yet, an 80 years old COVID-19 patient had been chained to a bed in a Madhya Pradesh hospital for not paying the required fee. This incident clearly shows the gross negligence on the part of the state in assuring the proper medical facility.

Moreover, Article 47 of the Indian constitution directs that "the state shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties".

Despite having a total of 9816 beds as on 14^th June, 2020, there are still 4418 vacant beds. Yet, citizens have been complaining against the unavailability of beds for COVID19 treatment in the national capital. The case of Paschim Banga Khet Mazdoor Samity & Ors v. State of West Bengal & Anor (1996) 4 SCC 37 held that "a patient cannot be denied emergency aid due to the non-availability of bed in the Government Hospital and if any such denial is made, the same amounts to the violation of Article 21 of the Constitution of India".

9. Even as per the Disaster Management Act, 2005, Section 24(d) provides that "the State Executive Committee, in threatening disaster situation, is bound to provide shelter, food, drinking water, essential provisions, healthcare and services in accordance with the standards laid down by the National Authority and State Authority".

1. In support to this, in another case of Vincent Panikurlangara v. Union of India & Ors (1987) 2 SCC 165 it was held that "a welfare state must commit to its duties to ensure the maintenance of good and congenial health conditions for its citizens".

1. In the case of Paschim Banga Khet Mazdoor Samity & Ors v. State of West Bengal &Anor (1996) 4 SCC 37, it was observed that "In the context of the constitutional obligation to provide free legal aid to a poor accused this Court has held that the State cannot avoid its constitutional obligation in that regard on account of financial constraints. The said observations would apply with equal, if not greater, force in the matter of discharge of constitutional obligation of the State to provide medical aid to preserve human life".

2. In another case of Thangapandi v. The Director Of Primary Health (2011) 1 MLJ 1329, in paragraph numbers 11, 12 and 13 of this Court's Judgment it is held as follows-"The Constitution envisages the establishment of a welfare state as the federal level as well as the state level. In a welfare state the primary duty of the Government is to secure the welfare of the people. Providing adequate medical facilities for the people is an essential part of the obligations undertaken by the Government in a welfare state. The Government discharges this obligation by running hospitals and health centres which provide medical care to the persons seeking to avail those facilities. Article 21 imposes an obligation on the state to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The Government hospitals run by the State and the Medical Officers employed therein are duty bound to extend medical assistance for preserving human life".

Failure on the part of a Government hospital to provide timely and proper medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21. Article 21 of the Constitution casts the obligation on the State to preserve life.

1. Further, in the above-mentioned case, the Code of Medical Ethics was also drawn up with the approval of the Central Government under Section 33 of the Indian Council Medical Act. It reads as"Every doctor whether at a Government Hospital or otherwise has the professional obligation to extend his services for protecting life. The obligation being total, absolute and paramount, laws of procedure whether in statutes or otherwise cannot be sustained and, therefore, must give way".
2. Failure on the part of a Government hospital to provide timely medical treatment to a patient in need of treatment amounts to violation of the right to life.
3. In Pravat Kumar Mukerjee v. Ruby General Hospital 2005 CPJ 35 (NC), the National Consumer Disputes Redressal Commission held that "Though a doctor is not bound to treat each and every patient, but in emergencies the doctor is bound to treat the patient and could not insist on delaying treatment until the fees were paid".

There is no bigger emergency than a nation-wide epidemic endangering the lives of millions of people. Denying treatment or abusing patients on account of non-payment of fees is clearly unconstitutional and violative of Article 21, right to life and liberty. The court must look at it on humanitarian basis and catch hold of all persons breaking the core principles in our laws.

4. Honorable Supreme Court in Consumer Education & Research Centre & others V. Union of India 1995 SCC (3) 42, ruled that "right to health and medical care, to protect health and vigor while in service or post retirement, is a fundamental right of a worker under article 21, read with articles 39(e), 41, 43,48A".

INTERNATIONAL COVENANTS AND LAWS ON RIGHTS OF THE DEAD

25. Geneva Convention 1949: Article 16 of this covenant states, "As far as military consideration allow, each party to the conflict shall facilitate the steps taken to protect the killed – against ill treatments."

26. Australia's Defence Force Manual, 1994 states, "The remains of the dead , regardless of whether they are combatants , non-combatants, protected persons or civilians are to be respected, in particular their honour, family rights, religions convictions and practices and manners and customs at all times they shall be humanely treated."

27. The UK Military Manual, 1958states"the dead must be protected against maltreatment."

28. The United Nations Commission on Human Rights: The 2005 resolution on human rights and forensic science underlined the importance of dignified handling of human remains, including their proper management and disposal as well as of respect for the needs of families.

9. Article 25(2) of Universal Declaration of Human Rights, 1948 assures that everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including medical care, sickness, and disability.

1. UN Commission on Human Rights in a resolution adopted in 2005 , "on human rights and forensic science , the UN commission on Human Rights underlined" The importance of dignified handling of human remains , including their proper management and disposal as well as of respect for the needs of families.

CONCLUSION

1. The visuals from in Delhi, West Bengal, Maharashtra and Puducherry are horrific. The state must take steps to ensure dignified disposal of corpses. Our modern society seems to have difficulty in addressing the issue of dying and death and this fact is reflected in recent incidents. Since the number of crimes against the corpses increasing, it is essential that a law be made for the protection of the same i.e. safeguards the human body, not only when the person is alive, but also when the person is dead. Every person has a right to safety, this includes the safety of his/her body from any harm that may be caused to him/her by a third party and this right being essential, cannot be taken away once a person dies only on the basis that the person is no longer alive and thus is not considered as a person. If the same argument that is applied to foetuses and the abortion argument, where the foetus, which is not yet born into the world is accorded the status of a living person and subsequently granted certain rights, then the body of a person who was once an actual living person, must be granted certain rights. The right to safety and dignity that is given to a person under Article 21 of the Constitution of India is mainly for the safety and dignity of the body of that person and to prevent any crime or harm that may be caused against it. Similarly, the body of the dead too must be respected and assured safety and dignity because irrespective of a person being alive or dead, a third person does not have the right to cause harm to the body of another.