'Health And Safety Concerns Should Precede over Religious Rights' : Plea In SC To Stop Burial Of Persons who Died of COVID-19 In 3 Mumbai Cemeteries

Aggrieved by the Bombay High Court's order of April 27, refusing to stay burials of deceased in these 3 cemeteries in Bandra West, the petitioner has sought Special Leave to appeal against the same. While the original writ petition before the High Court had challenged the permission given by Brihanmumbai Municipal Corporation (BMC) to use certain cemeteries for burials, the aforementioned interim order renders the plea infructuous, contends the petitioner.

"Consequently, in the absence of any interim protection the Petitioners' writ petition would be infructuous as the burial process will continue and irreversible damage would be caused to the neighbouring area if the covid-19 virus spreads due to the infected buried bodies."

The petitioner, Pradeep Gandhy, raises health and safety concerns involved in permitting burials to take place, especially in densely populated areas such as his.

His primary contention is that burials of those who died of COVID-19 might pose a health risk to the public at large and therefore, should not be allowed for the time being. Religious rights must be subject to public order and health, in this unprecedented health crisis that we find ourselves in, urges the petition drawn up by Advocate Udayaditya Banerjee.

"The present unprecedented health situation ought to take precedence over the religious rights of the deceased's family members seeking to bury the deceased at the subject cemeteries. In the context of shifting of graves of muslims vis a vis their right to religion under Article 25 and 26 of the Constitution, this Hon'ble Court has consistently reiterated the fact that such right must be subject to public order and health of the larger community."

Conceding that there is no research to suggest that burials could cause the infection to spread through soil and underground water, the petitioner argues that it is wise to err on the side of caution during extraordinary times. On the other hand, it has also been submitted that there is no research to suggest the contrary either and several governments world over have advised on cremating the bodies of deceased who succumbed to the virus. The Maharashtra Government had also issued a circular advising the same, but later modified it, states the plea.

"(The State) had originally issued a Circular dated 30.03.2020 directing that all Covid-19 infected deceased should be cremated and not buried, to avoid the risk of spreading of infection. However, due to undisclosed reasons, (they) modified this Circular, and issued the impugned Circular dated 9.04.2020, permitting burial to take place in 20 notified cemeteries, which included the subject cemeteries."

"Even though there may be no scientific basis to the contrary, it is precautionary in nature and imperative to be "safe rather than sorry" in extraordinary times such as the present situation where there is no cure to the disease."

Moving on, it is argued that even if burials are permitted, the same should take place in less populated/congested areas due to the potential catastrophe that could fall upon the residents of these places, adjacent to the cemeteries alluded to. To this end, examples of cemeteries located in such areas, which have not been listed by the BMC in its circular, have also been suggested.

"It is respectfully submitted that the Petitioners have a legitimate fear of the spread of the covid-19 virus through the soil to the nearby populace, if the infected bodies are buried in the subject cemeteries. If at all the burial cannot be avoided due to religious and personal reasons, then the same ought to take place at the cemeteries near area which are less populated."

It has thus been prayed that not only the burial process at those three cemeteries be stayed, but the operation of the April 27 High Court order also be stayed till the present plea is disposed off.

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