Is There Need To Continue Granting Community-Based Licenses For Cremation, Burial Grounds? Kerala High Court Asks State To Examine

The Kerala High Court recently asked the State to examine whether there was any need to continue granting separate licenses for burial or burning grounds for different communities, and whether such an action would violate Articles 14 and 21 of the Indian Constitution. 

The Division Bench comprising Chief Justice S. Manikumar and Justice Murali Purushothaman was considering a petition alleging denial of access to cremation in a public graveyard to members of the Chakkiliyan Community of Puthur Grama Panchayat of Palakkad District.

The Bench perused various provisions of the Kerala Panchayat Raj (Burial and Burning Grounds) Rules, 1998, dealing with providing burial and burning grounds by Panchayat, and observed that the State Government could permit burial grounds on the basis of communities apart from the public burial or burning grounds, and issue license. 

"Without going deeper into the provisions, which permits that licenses can be given to communities, to have separate burial or burning grounds, when the State of Kerala is stated to be God’s own Country, this Court can only observe as to whether, what is enshrined in the Constitution of India and the decisions cited supra, are being followed in letter and spirit or not. Let the Legislature and the Executive, maintain right to dignity and fair treatment under Article 21 of the Constitution of India, not only to a living person, but also to the mortal remains of a person," it was observed. 

The Court in the same vein went on to add, 

"...Legislature has to consider whether, there is any need to continue granting separate licenses for burial or burning grounds, on the basis of communities, and whether such action violates Articles 14 and 21 of the Constitution of India".

The Case

NGO Dhisha sought to espouse the cause of the Chakkiliyan Community where marginalized communities are allegedly denied access to cremation in a Public graveyard.

The organization averred that Chakkiliyan community is a backward community (vulnerable community) among the Scheduled Caste communities in the State, that has been historically subjected to various forms of oppression and marginalization. They said the issue was brought to the attention of the volunteers of the petitioner organization during outreach programs. It averred there was an express refusal to bury the dead body of a Schedule Caste woman, belonging to Chakkiliyan Community and to perform the funeral rites, due to the prevalence of the practice of untouchability in the Gram Panchayat. The members of the dominant castes allegedly threatened and wrongfully restrained the family members of the deceased from entering the public crematorium. 

The petitioner averred that initially, the Chakkiliyan community was allotted a burial ground, near a river, but following objections from the people as it was an open space on rock and the remains of the body made the river bank and water unhygienic, they chose a far away forest land for the burial owing to their fear of the forward castes. However, this forest land also was closed for burial of persons. 

It was submitted that the Village Officer, Puthur (8th respondent), had made a report to the Tahsildar, on this aspect that, each community was claiming a separate burial ground. The Village Officer had also reported that plots 1-3 were earmarked for 3 separate communities. The Panchayat had also earmarked Rs.12,00,000/- during the plan period of 2019-2020  for constructing a compound wall for the cremation ground. 

The petitioner averred that no action was forthcoming despite making representations to the Chief Minister, District Collector, DGP and the State Commission for SC/ST.

It is on these grounds that the petitioner had filed the instant writ petition alleging violation of Articles 15, 17, 21, 46, and 243G, apart from various provisions of the Protection of Civil Rights Act, 1955, and the SC/ST Prevention of Atrocities Act, 1989. 

The District Collector, Palakkad (2nd respondent) however, denied the averments and claimed that a separate burial ground was available at Nerinjikandymedu for burying the dead belonging to the Chakkiliyan Community. The District Collector submitted that the burial of the aforementioned woman belonging to the community was only objected to owing to the fear of COVID-19 pandemic at the time, and not on any other grounds. 

Findings of the Court

The Court in this case noted that the question as to why the body of the deceased woman was not allowed to be buried in the Alamaram, renamed as Sivasakthimaya burial ground had been explained. The Court was of the view that considering the gravity and mortality prevailing at that time of pandemic, the apprehension expressed by others could not be ignored, and that the Court could not hold that there was any discrimination due to the solitary incident that had been reported. 

"However, in any public burial ground, mortal remains of all persons, irrespective of their communities, should be allowed to be buried, without any discrimination," it added. 

The Court also took note of the statutory provisions permitting the Government to issue license for burial grounds on the basis of communities, apart from the public burial or burning grounds, and the list of such private crematoriums/burial grounds that had so been marked for different communities. 

The Court thus observed that the provisions enshrined in the Constitution, and the various decisions such as Parmanand Katara v. Union of India & Ors. (1995), Ramji Singh @ Mujeeb Bhai v. State of U.P & Ors. (2009), and other such cases, pertaining to dignity of the deceased, had to be followed in both letter and in spirit. 

It is on these grounds that the Court asked the Legislature to consider as to whether there was a need for continuing the grant of separate licenses for burial or burning grounds on the basis of communities, and whether the same would violate Articles 14 and 21 of the Constitution. 

The petition was thus disposed of. 

Advocates P.K. Santhamma and Dhanuja M.S. appeared on behalf of the petitioners. The respondents were represented by Senior Government Pleader K.P. Harish and Advocate Mary Benjamin. 

Case Title: Dhisha v. State of Kerala & Ors. 

Citation: 2023 LiveLaw (Ker) 204

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