Break The Shackles Of Casteism, Equality Should Commence At Least For The Dead: Madras HC Calls For Common Burial Grounds

Lamenting the casteism still prevailing in the country, the Madras High Court noted that even after 75 years of Independence, the government still has to provide separate burial grounds on communal lines. Justice R Subramanian and Justice K Kumaresh Babu observed that the government should ensure that at least the burial grounds should be made common to all communities.

But even in the Twenty First Century, we are left grappling with casteism and classification based on caste is made even in matters of burial of the dead. This situation has to change and the change should be for the better. We sincerely hope that the Government of the day would come forward to make a beginning by making at least burial grounds and burning grounds common to all communities. 

The bench was hearing pleas challenging an earlier court order permitting the officials to exhume the dead bodies at a property which was classified as Vadi-Pathai Puramboke and was not a designated burial site.

The appellants contended that under the Tamil Nadu Village Panchayat (Provision of Burial and Burning Grounds) Rules, 1999 the burial of the dead in a particular place could not be said to be illegal in the absence of prohibition. Though the Panchayats had authority to designate a place of burial ground, it would not result in prohibition from burying in other places. The appellants further submitted that it had become a custom to bury the dead in the particular plot.

The respondents however contended that a burial cannot happen in the place designated as a Vandi Pathai or Cart Track. It was also submitted that though there was no restriction, it was open to the State to prevent burial in particular place when a convenient place was duly authorised.

Looking into the Tamil Nadu Village Panchayat (Provision of Burial and Burning Grounds) Rules 1999, Tamil Nadu District Municipalities Act 1920 and the Chennai City Municipal Corporation Act, the court noted that while burying or burning of the dead in Municipal and City Municipal Corporation areas outside the areas licensed or designated as burial or burning grounds is completely prohibited, the same is not the case in a Panchayat area. In panchayat area, the prohibition was only with respect to places which are located within a distance of 90 meters from the dwelling unit or a source of drinking water supply.

The court noted that the plot in question had several dead bodies and very old graves in it as per the Advocate Commissioner's report. The final report submitted by the Inspector of Police also observed that the land in question had been used as a burial ground for several years.

The court held that in the absence of any prohibition in any laws, it could not agree with the order of the writ court to exhume the dead bodies.

Material is also available to show that there are designated burial grounds on community basis in the Village. In the absence of any prohibition in the enactment as is the case in the Tamil Nadu District Municipality Act and Chennai City Municipal Corporation Act, we are unable to persuade ourselves to agree with the conclusions of the Writ Court. 

At the same time, the court cautioned that the "no prohibition" aspect should not be used as a license to bury or dispose of the dead anywhere and everywhere. The court added that wherever there were designated burial grounds, such places had to be used unless there was a custom in the Village to use any other area.

We hasten to add that the fact that there is no prohibition cannot be used as a license to bury or dispose of the dead anywhere and everywhere. Wherever there are designated places for burial and burning of the corpse, burial and burning must be restricted to those designated places unless there is a custom in the Village or area concerned to use any other place for burial or a burning of corpses. 

Case Title: P Muthusamy and ors v Mrs P Vennila and ors

Citation: 2022 LiveLaw (Mad) 476