Kerala High Court Issues Notice In Plea Challenging Kerala Right to Burial of Corpse In Christian Cemeteries Act, 2020

The Kerala High Court has issued notice in a plea challenging Kerala Right to Burial of Corpse in Christian (Malankara Orthodox-Jacobite) Cemeteries Act, 2020.

The Malankara Orthodox Syrian Church has approached the High Court challenging the provisions of the Act which permits burial of Jacobites in their family cemetery which are now under the control of the Orthodox faction.

Justice PV Asha, admitted the writ petition and has posted the case on 17th February for further consideration.

The Kerala State Legislative Assembly had passed the bill in February, last year.  Section 3 of the Act gives right to all members of the families belonging to a parish to be buried in the cemetery where their ancestors were buried. The relatives of the deceased member of a parish may forego funeral services in church or its cemetery or opt for funeral services at any other premises by a priest of their choice, the Act states.

"Parish" is defined as a group of Christian families having a church or prayer hall for its members to offer worship and '"Christian" as any person belonging to the Orthodox-Jacobite denominations of Malankara Christian Church who believes in the Bible and accepts Jesus Christ as the only begotten Son of God and has been baptized. The Act, however, clarifies that, a member of a family belonging to a parish includes descendants of all persons who have been buried in that cemetery but shall not include those who have left the faith of Orthodox-Jacobite Church and have embraced other denominations of Christian Church or other religions.

The Act also has a penal provision. Whoever prevents or attempts or abets to prevent the burial of corpse in violation of the provisions contained in section 3 shall, on conviction, be sentenced to imprisonment for a term which may extend to one year or with fine which may extend to ten thousand rupees or with both, Section 4 reads.

In a judgment delivered in March 2019, the Kerala High Court had held that, irrespective of his allegiance, a parishioner cannot be deprived of his/her right to burial in the church of which he/she is the parishioner. In this case, it was noted that the parishioners of a particular church, who owe allegiance to the Patriarch faction, were denied their right to bury their family members, in the space allotted for burial of their family members in the cemetery attached to the church concerned. "This, in our view, would not be in accordance with the declaration of the Supreme Court in the cases referred above. As observed by the Supreme Court in paragraph 228.17 in K.S. Varghese's case [supra], the Church and the cemetery cannot be confiscated by anybody. It has to remain with the Parishioners as per the customary rights and nobody can be deprived of the right to enjoy the same as a Parishioner in the Church or to be buried honourably in the cemetery, in case he continues to have faith in the Malankara Church.", the bench had observed.

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