NHRC in its advisory has enumerated the various rights of dead persons which are as follows:-
A.
International Framework
Human dignity lies at the core
of all international human rights laws. Some of the international covenants and
laws that deal specifically with the dignity of the dead are given below:
1. Article 16 (II paragraph) of
Geneva Convention 1949 IV provides “As far as military consideration allows,
each party to the conflict shall facilitate the steps taken to protect the
killed against ill treatments”.
2. Article 3 (a) of the 1990
Cairo declaration on Human Rights in Islam provides “In the event of the use of
force and in case of armed conflict- it is prohibited to mutilate dead bodies”.
3. UN Commission on Human
Rights in a Resolution adopted in 2005, underlined the importance of dignified
handling of human remains, including their proper management and disposal as
well as of respect for the needs of families.
4. The UN’s Inter Agency
Standing Committee’s Operational Guidelines on Human Rights and Natural
Disasters recommend that appropriate measures should be taken ‘to facilitate
the return of remains to the next of kin. Measures should allow for the
possibility of recovery of human remains for future identification and reburial
if required’.
5. International humanitarian
law [Article 130(1) of the fourth Geneva Convention] provides that States
should ensure that ‘graves are respected, properly maintained, and marked in
such a way that they can always be recognized’.
B. National Framework
Article 21 of the Indian
Constitution which guarantees the Right to Life, embraces many aspects of a
person’s life including Right to Dignity. By various judgments of the Supreme
Court and High Courts, this right has been extended to dead persons also.
1. Supreme Court Cases:
i. In the case of Parmanand
Katara v. Union of India, 1989 (W. P. (Crl) No. 270 of 1988, SCC (4) 286), the
Supreme Court highlighted the importance of conferring dignity to dead persons.
Again, it was reiterated by Apex Court in the case of Ashray Adhikar Abhiyan v.
Union of India, 2002 (W. P. (C) 143 of 2001), that dignity of the dead must be
maintained and respected. Moreover, it extended the right to the homeless
deceased person to have a decent cremation according to the religious customs
to which one belongs to, it also established a corresponding duty on the State
to ensure that decent cremation is served to the person.
ii. In P. Rathinam v. Union of
India, 1994 (SCC (3) 394), the ambit of article 21 was widened to include the
dignity of a person. It emphasized that the right to life means a meaningful
life and not merely animal existence. Further, this right to dignity was also
expanded to a dead person.
2. High Court Cases:
i. In the case of S. Sethu Raja
v. Chief Secretary, 2007 (W.P. (MD) No. 3888 of 2007), the Madras High Court
directed the Government authorities to bring the dead body from Malaysia, so
that burial can take place at home according to traditions and customs.
ii. Ramji Singh and Mujeeb Bhai
Vs. State of U.P. & Ors, 2010 (PIL) No.- 38985 of 2004) – In this case the
Allahabad High Court contended that a person’s right to life includes the right
of the dead body to be treated with the
same respect that he would have deserved if he were alive.
It is imperative for the State
to treat the corpse with dignity, and must only resort to postmortem if it is a
necessity.
3. Provisions under Indian
Penal Code, 1860: Under the IPC, 1860, the rights of deceased persons include
Right against trespass of burial sites, places of funeral rites, etc. under
Section 297; Right against dishonest misappropriation and conversion of
property under Section 404; Right against defamation under Section 499 and
Right against criminal intimidation under Section 503.
4. Transplantation of Human
Organs and Tissues Act, 1994 (THOTA): The THOTA regulates the removal, storage
and transplantation of human organs and tissues for therapeutic purposes for preventing
commercial dealings in human organs and tissues as well as matters connected therewith
or incidental thereto. THOTA guarantees a deceased person the right to protect
and preserve the human organs or tissue or both of the dead body from being
harvested without his/ her consent or the consent of near relatives.
II. Basic Principles for
Upholding the Dignity and Protecting the Rights of the Dead
1. No discrimination in
treatment of the body in any form- To ensure that the dead body is properly
preserved and handled irrespective of religion, region, caste, gender, etc.
2. No physical exploitation-
Any form of physical exploitation of the body of the dead violates the basic
right of the deceased person.
3. Decent and timely burial/
cremation- The deceased person has the right to a decent and timely burial/
cremation.
4. To receive justice, in case
of death due to crime- The dead have the right to receive justice in cases
where death occurs due to crime.
5. To carry out a legal will-
The will, if any, left by the dead must be respected and honoured.
6. No defamation after death-
The deceased person should not be defamed by any kind of statement or visible
representation, made or published intending to harm his/her reputation.
7. No breach of privacy- The
deceased person has the right to privacy, i.e., the right to control the dissemination
of information about one’s privacy.
III. Role and
Responsibilities of the Stakeholders Towards Upholding the Dignity and Protecting
the Rights of the Dead
1. Citizen:
i. Duty to inform: It should be
the duty of every citizen to inform, after noticing any incident of death,
immediately to the nearest police station and/or to emergency ambulance
services or the administrative/ legal authorities, whichever feasible.
ii. Carrying procession:
Citizens should not use the dead bodies as baits for pursuing their demands, etc.
2. Hospital Administration:
i. Clothing of the dead body:
Clothing of the deceased should be collected, examined as well as preserved and
sealed by the doctor conducting the autopsy, and should be sent for further examination
at the concerned forensic science laboratory. Further, it should be covered in
special Body Bags for proper transportation.
ii. Storage of unclaimed
bodies: The unclaimed bodies must be stored under safe conditions in the deep
freezer to prevent any decay or damage to the dead bodies.
iii. Segregation and
arrangement of the dead bodies: It must be ensured that the bodies are segregated
based on gender and are kept in a dignified manner by avoiding piling up.
iv. Release of dead bodies: The
Hospital administration should be explicitly prohibited from deliberately
retaining any dead body on the count of pending bill payment. The hospitals
must hand over the body to the family of the deceased or to the civic body (if
it is an unclaimed body) in a dignified way.
v. Licensure for use of
unclaimed bodies: Hospitals that utilise the unclaimed bodies for academic, research
and training of the medical students must have valid license for the same.
3. Medical Practitioners
i. Implementation of the
ethical guidelines of ICMR: All the medical practitioners must follow the
guidelines of the ICMR while dealing with the claimed as well as unclaimed dead
bodies.
ii. Announcement of the death:
After death, it must be officially pronounced/ declared by a doctor without any
delay.
4. Forensic Department and
Practitioners:
i. Trained and qualified
professionals: Only the trained and qualified professional in forensic medicine
should perform the autopsy procedure and the use of inappropriate tools such as
a hammer, etc. should be avoided.
ii. Video-filming and
photography of post-mortem examination: In case of custodial death where there
is a requirement of post-mortem examination, NHRC guidelines for video-filming
and photography should be complied with accordingly.
iii. Handing over the body to
the family: It must be ensured that the external appearance of the deceased and
the incisions on the body must be hidden by clothes while handing over the body
to the family/relatives.
iv. Timely post-mortem: It must
be ensured that the post mortem examination is done without any delay so that
funeral arrangements are not delayed
v. Protection of personal and
genetic information: Genetic data obtained through DNA profiling must be
handled carefully and confidentially as the same may be required to trace the
identity of the unclaimed dead bodies. For this, data banks should be properly
maintained to store the genetic data and biological samples of the unclaimed
bodies, as per the existing laws.
5. Mortuary Services:
i. Mortuary hygiene: Regular
mopping and cleaning of mortuary should be undertaken so that dead body remains
are preserved in a proper, clean environment, thereby maintaining its dignity.
ii. Secured information: The
facility should maintain confidentiality of clinical records and must have a
mechanism for guarding information related to the deceased, especially for
cases that are stigmatized and socially criticised, such as that of HIV and
suicidal cases.
iii. Maintaining privacy of
premises: Post mortem room should not come under the direct line of sight of
the general public/visitors. To ensure the same, provision of curtain, screen
or buffer area may be made in a post mortem room.
iv. Removing physical/
infrastructural barriers: The facility must have infrastructure for delivery of
assured services, to meet the prescribed norms. All basic requirements must be
available and maintained as per the Indian Public Health Standard Guidelines
for District Hospitals for management of the dead bodies.
v. Sensitization of the staff:
The mortuary administration may sensitize the staff from time to time to train
them in handling of the dead body and deal with the attendants of the deceased
with sensitivity.
6. Governments
A - Central/ State Government:
i. Digitization of data: Each
State must maintain a district wise digital dataset of death cases. A dynamic
web portal for displaying data for both identified and unidentified bodies must
be created and it must be the responsibility of the State to ensure protection
of such data.
ii. Digital confirmation of the
death of a person must be simultaneously updated in all documents such as Bank
Account, Aadhar Card, Insurance etc., wherever applicable, to prohibit the
scope of any impersonation or illegal monetary transaction gains.
iii. 24x7 Helpline: Whenever
there is any calamity or disaster or major accident, etc., leading to deaths of
persons being away from family, the Government should create a 24x7 Helpline
facility to help the families of deceased persons for collection of body or to
report any grievance regarding any unethical behavior such as assault or any
inhuman conduct with the body of the deceased.
iv. Opting partial autopsy
methods: The Government/ National Medical Commission may consider to adopt a
partial autopsy method in cases where the complete autopsy is not necessary, arrangements
of techniques, experts and training of the forensic experts shall be conducted
to promote advanced methods of autopsy.
v. Availability of equipment
for post-mortem: The State should ensure the arrangements of standardized
instruments at all forensic medicine departments for effective conduct of
postmortem procedure.
vi. Preparation of SOP: State
Governments should make their own SOPs, as required, to ensure dignity of the
dead, taking into account the specific practices, rituals, customs, etc.,
followed in their respective States/ regions.
B - Local Government/
Administration:
i. Ensuring appropriate
disposal of the dead body: In the event of legal heirs disowning the body and
depriving it of a decent burial, the local Government / civic body should
ensure proper disposal of the body after due legal procedures like post-mortem
etc.
ii. Donation of organs by the
deceased: The law should be amended to the effect that the will of the deceased
regarding the organ donation is given prime importance irrespective of the
opinion of the legal heir.
iii. Maintenance of burial
grounds/ crematoriums: It must be ensured by the State/ Local Government that
the condition of crematoriums, burial grounds, electric crematoriums are properly
maintained to keep them in effective working conditions.
iv. Encouraging electric
cremation methods: Environment friendly cremation practices like the usage of
electric crematoriums may be encouraged, which would also reduce the burden on
the existing burial grounds/ crematoriums.
v. Periodic inspections: The
local government bodies should visit the local hospitals to ensure the compliance
of the guidelines in management of the claimed or unclaimed dead bodies.
vi. Transportation of the dead
bodies: The local authorities should ensure that the transportation facilities
are available to transport the body of the deceased at the request of family
members.
vii. In case of unidentified
dead bodies: The last rites of unidentified dead bodies should be performed
with honor and dignity while taking their religion into consideration. The
necessary fund required for this purpose may be adequately maintained.
viii. Maintenance of database:
Local government/ District Registrar of deaths should maintain the database of
deaths in the district.
7. Police:
i. No delay in post mortem: The
Police administration should ensure that there is no undue delay in calling a
forensic team to the crime scene and in transferring the body of the deceased
for postmortem examination. Transfer of the dead body to the hospital
administration and submission of the complete inquest form should be done
within the stipulated period of time.
ii. Handling of the dead body:
In cases where death occurs due to fire accidents, self- immolation, murders,
death due to sexual offences, custodial deaths, suicides, road and other
accidents, the body of the deceased must be covered, handled with respect and
sent to mortuary immediately for performing the autopsy procedures.
iii.
Identification of the dead bodies: For identification of the dead bodies,
labelling of a unique body code, technical photographs, other data from the
dead bodies may be collected and stored under the police record for
identification and further transfer of the dead body to the family.
iv. Availability of body bags
& basic forensic kits: ‘Body bags and basic forensic kits to be made available
at police stations to maintain the sanctity of the body and collection of
evidence from the incident site, if it is a case of homicide/accident/unnatural death.
v. Keeping the dead bodies in
the mortuary: It may be ensured that the dead bodies do not remain in the
mortuary for more than 72 hours. In case of an unidentified body, the Police
should make serious efforts for its identification and disposal accordingly in
a dignified manner.
vi. Photography: Video-filming
and photography of the post-mortem examination should be done by a person
trained in forensic photography and videography.
8. Prison
i. Custodial death: In case of
death inside prison, as per section 176 (1A) CrPC, the prison officials shall
inform the Judicial Magistrate for judicial enquiry on the cause of death. The
family of the deceased should also be informed simultaneously.
ii. Dignified treatment: In
case of death in custody, the body must be covered and handled in a dignified
manner while sending it to the forensic department/ hospital without delay for performing
the autopsy procedures.
9. Family:
i. Donation of the organs,
tissues or cells: If the deceased had consented to the donation of the organs,
tissues or cells, it should be honored and implemented accordingly.
ii. Death registration: The
death of a person should be registered by the family members as soon as possible
so as to avoid any kind of misuse of his identity for claiming any kind of
benefit by an unauthorised person.
10. Media:
i. Right to privacy and
dignity: Media including social media must avoid explicit photographs or videos
of dead bodies from being shown to the common public and must use masking
techniques wherever the dead body is shown, so as to ensure that the right to
privacy and dignity of the deceased person is not compromised.
ii. No derogatory remarks:
Personal remarks or comments which are derogatory in nature, hampering the
dignity of a dead person, should not be published.
11. Civil Society Organizations
and NGOs:
The CSOs/NGOs should come
forward to take up the responsibility of performing last rites of the unclaimed
and unattended bodies in dignified manner.
