Liberty Of An Individual To Do Anything Which Is Not Illegal Is Unquestionable Even If It's At Divergence From Established Social Norm: MP HC [Read Judgment]

The Madhya Pradesh High Court has held that liberty of an individual to act in any manner where such act is not prohibited under the law, is unfettered and unquestionable.

According to Rajendra Kumar Mishra [ADGP, Madhya Pradesh] his father is alive. But a local newspaper reported that he has been keeping the lifeless body of  his father Kulamani Mishra at their residence on account of which two of the guards on duty fell ill allegedly due to the stench emanating from the decomposing body. The State Human Rights Commission [MPHRC] intervened and formed a committee to conduct an enquiry in the matter. But, Mishra refused to allow the police and other authorities to enter his residential premises in order to ascertain whether his father is dead or alive.

Failure to consign the human remains to last rites would not violate the human rights of the deceased

The question considered by the High Court, while considering the writ petition filed by Mishra and his mother [challenging the intervention made by the MPHRC], was whether retaining the body of the deceased and not subjecting it to last rites is unlawful or illegal? The Court noted that there are no complaints of either public nuisance or fouling of the air. Justice Atul Sreedharan said:

"Where the law permits a certain act, there is no doubt that doing of that act would be legal. Similarly, where the law prohibits a particular act, the doing of that act would be illegal. However, where the law does not explicitly permit an act and neither prohibit it, or in other words, where the law of the land is completely silent about the legality or illegality of the act, would the doing of that act be unlawful, only because it is at conflict with the contemporary mores of the society and an overwhelmingly preponderant public perception of what is right? The liberty of an individual to act in any manner where such act is not prohibited under the law, is unfettered and unquestionable."

The court disagreed with the contention that failure to consign the human remains to last rites would violate the human rights of the deceased. It said:

"If the said contention is taken to be correct, what happens in the cases of organ donation? Or, in such cases were the body of the deceased is donated to Medical Colleges for the purpose of introducing fledgling medical students to the subject of Human Anatomy? In the first instance, the human remains are subjected to partial mutilation to remove such vital organs that may give a new lease of life to the ailing after which the remains may be subjected to final rites. In the second instance, there is complete mutilation of the cadaver in the process of teaching medical students. As far as the society is concerned, both these instances are not in consonance with the preponderant public opinion on how human remains may be disposed of but the importance of both these instances to the society cannot be underscored enough."

The court then considered the issue whether the right to privacy extends to preventing the authority of the State from entering his residential premises in order to ascertain the truth about his father's condition.

"A man's home is his castle and within its precincts, he is the undisputed master of his will. What he does within is beyond the scrutiny of the State unless, there is reasonable cause to believe that the residential premise is a scene of crime or of unlawful activity whereby the law of the land empowers the relevant functionaries of the State to compel the occupier to give ingress to them."

Citizens not expected to act and behave like clones

Referring to Justice K.S. Puttaswamy (Retd) and Anr vs. Union of India judgment of the Supreme Court of India, the court further observed:

"The Judgement of the Constitution Bench of the Supreme Court makes it clear that in a democracy like ours there is no expectation from the citizens to act and behave like clones having the same perception and way of life. On the contrary, the Supreme Court has held that a democratic way of life accepts and respects dissent and allows the individual to think and act in a manner that may be at complete divergence with the thoughts and expectations of the society."

The court finally concluded that, even assuming that ADGP's father is no more and he has kept the human remains in his residential premises, that by itself does not become an illegality warranting intrusive action by the State. Allowing the plea, the court said:

"The Conduct of the Petitioners may be at divergence from the established social norm. It may be based upon a perception which may not find the approval of many yet, the Petitioners have the right to be different in thought, perception and action. Keeping the dead body of Mr. Kulamani Mishra (as is perceived and so stated on behalf of the Respondent No.2) at their residence may be revolting and abhorrent, bringing the bile to the mouth of many, viewed as bohemian by those who are conventional and conformist and yet, under no circumstances can the State intervene and disturb the right to privacy of the Petitioners if the said act does not come within the ambit and scope of an offence or an illegality. Morality may be a source of law, but it is not law and neither does it have the force of law. Today's morality may become law tomorrow either by way of legislation or common law pronouncement but till then, moral indignation of the society or the State, acting at behest of the society, cannot curtail the actions and thoughts of an individual as long as such action is not violative of any existing law."

""A regime, which forbids everything save only those things that are expressly allowed, would be regarded as a bullying power-structure, while a regime which permits everything save only those things that are expressly forbidden, would be counted liberal by contrast" . India falls in the latter category being a liberal democracy where a man is permitted to act in any manner he pleases, where such act is not prohibited under the law, irrespective of the fact that his act might be seen as galling by the majority." 

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