5 things you didn’t know about the Rights of the Dead

The family of the Hathras gang-rape victim has claimed that the police forcibly cremated her body in the middle of the night, without respecting the family’s wishes. The 19-year-old Dalit woman died in a Delhi hospital on Tuesday, a fortnight after she was gang-raped in Hathras, Uttar Pradesh.

1.The right to dignity

The fundamental right to life under Article 21 of our Constitution includes the right to live with dignity. The Supreme Court has said that the right to dignity is available not only to a living person, but also to the person’s body after death. The Court has upheld the fundamental right to die with dignity.

Earlier this year, the Madras High Court said that the scope of Article 21 includes the right to have a decent burial. Further, the Calcutta High Court also stated that the right to dignity and fair treatment under Article 21 is not only available to a living person, but also to the person’s mortal remains after his/her demise. Disposal of a human body, whether by cremation or burial, should be done with due respect.

2. The right to religion

The Supreme Court even affirmed the right of homeless deceased people to have decent burials as per religious belief, and the responsibility of the government to ensure the same. Further, the Allahabad High Court stated that a dead body should be treated with respect keeping in mind a person’s tradition, culture and religion.

In 2020, the Calcutta High Court stated that traditions and cultural aspects are essential to the last rites of a person’s dead body. The right to a decent funeral can be traced in Article 25 of our Constitution which provides for freedom of religion as a fundamental right.

3. Defamation of a dead person

If you make a claim or allegation that would harm a dead person’s reputation, with the intention of hurting the feelings of his/her family members, you can be punished for criminal defamation. The punishment for defamation is imprisonment for up to two years and/or a fine.

4. Trespassing on burial places

You can be punished for deliberately trespassing in any place set apart for the performance of funeral rites or for the remains of the dead, if you do so with the intention of insulting a person or religion. You can also be punished for extending any indignity to a human corpse, or causing disturbance to people assembled for the performance of funeral ceremonies. The punishment is imprisonment for up to one year and/or a fine.

5. The right to access a dead body

A hospital or medical professional cannot hold the body of a deceased patient for any reason including:

• Non-payment/delay in payment of charges; or
• Dispute regarding any hospital charges.

Under the law, this is a crime of wrongful confinement. The punishment for wrongfully confining someone is a jail term of up to one year and/or a fine of up to ₹ 1000. If the confinement extends to 3 days or 10 days, the punishment is imprisonment for up to 2 years or 3 years respectively.