The bench of Justices D. Y. Chandrachud and Surya Kant was hearing a plea by the Surat Parsi Panchayat Board for a direction to permit it and its members to perform Dokhmenashini/last rites in Dokhmas of its members having died due to Covid 19, in accordance with their religious practices. The SLP was against the July 2021 judgment of the Gujarat High Court dismissing the petitioners' prayer for declaring the impugned 2020 Covid-19 Guidelines on Dead Body Management, issued by the Union Ministry of Health and Family Welfare, as ultra vires Articles 14, 19, 21, 25, 26, and 29 of the Constitution.
"The impugned Guidelines issued by the Ministry of Health and Family Welfare considering the prevailing situation of Covid-19, in the larger public interest for the disposal of dead bodies by cremation or burial, could not be said to be violative of any fundamental rights of the Parsees, more particularly when such means of disposal of dead bodies is also in vogue in all parts of the country and when it is not anathematic and sacrilegious to the religious practices being followed by the Parsees", the High Court had held.
At the previous hearing, the Court had directed- "Senior Advocate Fali S. Nariman, for the petitioner, has submitted a written note indicating the manner in which obsequial rites of Parsi Zoroastrians who have died as a consequence of the COVID-19 pandemic would be carried out. He submits that the proposed guidelines will sufficiently meet the concerns of the Union Government. But, at present, the guidelines which have been issued by the union government in the Ministry of Health and Family Welfare do not take into account the concerns of the community. We have requested Mr. Tushar Mehta, Solicitor General of India, to render assistance by evaluating the proposed guidelines. Ms. Deepanwita Priyanka appears for the State of Gujarat. On the request of the SG, list on January 17"
On Monday, at the outset, the SG submitted, "I have filed an affidavit pointing out that it may not be scientifically possible"
Mr. Nariman advanced, "They must kindly consider that we are not on a confrontational submission. We are strictly on the dignity of the dead in the disposal of bodies along with the guidelines of the Union Government. If they could just go through the protocol that we have mentioned. All the safeguards they want are provided for"
"We are not taking it in an adversarial manner. We are only on what is the problem. My affidavit is also only about it", replied the SG.
At this, Justice Chandrachud put to the SG, "The petitioners have suggested a protocol. You can see now if you want to add something to the protocol or you can introduce additional safeguards to the protocol which will take into account the concerns. Of course, the Union of India has valid concerns on account of public health and public well-being. If you can look at the protocol and make track changes to the protocol and share it with Mr Nariman's instructing advocate? Convene a meeting of the concerned officials of the Ministry of Health and Family welfare. See to what extent the protocol can be (unclear). Their broad theme is allowing religious observances to be completed. Your concern is not so much religious observances but health, so you can introduce some safeguards so that the central concerns of the Union of India are also accepted and their religious observances and the essential tenets of the Zoroastrian belief are also taken care of"
"I am not pointing out what the problems are right now because that preempts my discussion. I will speak with the concerned officers", assured the SG.
Justice Chandrachud continued, "One thing which perhaps can be done is if an informal, completely without prejudice, meeting could be held. In today's times, it would be in the video conferencing platform. If the SG could meet and Mr. Nariman could also meet. Let there be an exchange of ideas. Some way forward can be found. It is not adversarial."
Mr. Nariman said, "I will phone the SG and seek proper time and date from him."
The SG said, "It would be done at the convenience of Mr. Nariman- His time and date, and we have to adjust"
Justice Chandrachud noted, "The first meeting could be more of an icebreaker to see what are the essential concerns of the community. And then with a little bit of give-and-take, we can resolve the issue in a very amicable manner"
Justice Chandrachud urged, "Then you can offer a tweaked protocol with track changes."
The SG said, "I am not adversarial at all. The tenor of the affidavit is also not adversarial. We have only pointed out the problem."
At the hearing on December 6, 2021, Senior Advocate Fali S. Nariman, for the petitioners, had told the Supreme Court, "In Parsis, there are Nasheshalars, who are professional corpse-bearers. But the Guidelines do not mention any other mode of disposal of dead bodies, other than cremation and burial. Article 21 is not just for living people but also for post death...Now, there is a new strain of the virus. It is a live issue"
On that date, issuing notice on the plea, Justice Chandrachud had observed, "Some part of the rituals may have to be modified, considering the aspect of the corpse-bearers' health...there is a very interesting judgment of the Bombay High Court, by Justice B. N. Srikrishna, on the importance of obsequial rites. In connection with the issue of burial in the Dawoodi Bohra community, the judgment traces the history of burial and obsequial rites and how, since times immemorial, the same have been the very essence of a faith"
It has been submitted on behalf of the petitioners that respondent No.1 issued guidelines, namely "Covid-19 Guidelines on Dead Body Management", whereby two modes i.e. either cremation or burial are identified for the disposal of the dead body, who died due to Covid-19. According to the petitioners, the said guidelines are completely silent on the other mode of funeral/disposal of dead bodies and impliedly ignoring the other religious practices of other communities. Accordingly, the respondent authorities do not allow the Parsi community to follow their religious and customary mandates of the last rites of the Parsi, who died due to Covid-19 pandemic. As regards the religious practices of "Dokhmenashini", it has been stated that the Parsis across India since several centuries have practised "Dokhmenashini", wherein the dead body is kept at a height in a structure known as "Well/Tower of Silence" to be eaten by vultures and the remains being exposed to the Sun to be decomposed. The well is situated at a secluded place and would be accessible to "Nasheshalars", who handle the dead body and place it in the well. Most of the Parsees prefer Dokhmenashini for the final disposal of their dead bodies following their religious faith, however, on account of the Covid-19 Guidelines for the management of dead bodies, the Parsees are not allowed to perform their last rites Dokhmenashini as per their religious faith.
The prayer before the High Court were as follows-
(a) Admit and allow this petition by passing an appropriate order, direction and/or writ directing the authority to permit the petitioners and its members to perform Dokhmenashini/last rites in Dokhmas of its member having died due to Covid 19, in accordance with their religious practices which is duly protected by the Constitution of India
(b) Be please to declare that the Guidelines do not prohibit the Parsees to perform the last rites of any of its member died due to Covid 19 in accordance with their religion.
(c) If the Guidelines is interpreted to prohibit the Parsees to perform the last rites in accordance with their religion of its member died due to Covid 19, be pleased to declare the Guidelines being ultra vires Articles 14, 19, 21, 25, 26, and 29 of the Constitution of India.
(d) Pending admission and final hearing of the present petition, the respondents, their officers, servants and agents be restrained from creating hurdles in the exercise of the fundamental rights of the petitioners and their members to perform Dokhmenashini/last rites in Dokhmas even with regard to any of their members died due to Covid 19.
The High Court noted, "At the outset, it may be noted that the petitioners have sought the indulgence of the Court for declaring the impugned Covid-19 Guidelines on Dead Body Management, issued by the Ministry of Health and Family Welfare, Government of India, on 15.3.2020, by filing the present petition in May 2021 when the severity or the ordeal of Covid-19 had substantially subsided. When the petition was being heard, the curve had almost flattened. Since the Court was of the opinion that the issue raised in the petition had become academic, Mr. Pandya was specifically asked by the Court as to how many Parsees as on the date were on the death bed due to the Covid-19, who were likely to be deprived of their practising Dokhmenashini because of the impugned guidelines, however, Mr. Pandya was unable to answer the query of the Court. It is well settled proposition of law that the High Court does not undertake to decide an issue unless it is a living issue. If an issue has become purely academic, the Court would not engage itself in deciding it"
In the impugned judgment, the High Court further observed, "Apart from the fact that the issue raised in the petition has become academic, there is no substance in the merits of the petition also. The impugned guidelines have been issued by the Ministry of the Health and Family Welfare Department in the wake of Covid-19 Pandemic on the management of dead bodies, in order to prevent the further spread or covid related infection. Such guidelines issued in the larger public interest considering extraordinary circumstances prevailing in the country, would take precedence over the individual interest as also over the religious faith and belief of a particular class of community. The safety and the welfare of the State is the supreme law as comprehended in the legal maxim - "salus populi suprema lex". Even the fundamental rights to profess, practice or propagate religion, and the right to manage religious affairs, as enshrined under Articles 25 and 26 of the Constitution of India, are subject to public order, morality and health. The Supreme Court recently in the Suo Moto case relating to holding of annual Kanwar Yatra amid Covid-19 Pandemic has observed in the order dated 16.7.2021 that 'The health of the citizenry of India and their right to "life" are paramount. All other sentiments, albeit religious, are subservient to this most basic fundamental right'..."
Case Title: The Surat Parsi Panchayat Board & Anr. v. Union Of India & Ors.