Madras High Court
Anandhi Simon vs The State Of Tamil Nadu
Author: Abdul Quddhose
Bench: Abdul Quddhose
W.P.No.7620 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 25.03.2021
DELIVERED ON : 31.03.2021
CORAM:
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
W.P.No.7620 of 2020 and
WMP.No.10654 of 2020
Anandhi Simon ... Petitioner
vs.
1.The State of Tamil Nadu,
Represented by Chief Secretary to Government,
Secretariat, Chennai – 600 009.
2.The Principal Secretary,
Home Department,
3
Secretariat, Chennnai – 600 009.
3.The Principal Secretary,
Health and Family Welfare Department,
Secretariat, Chennai – 600 009.
4.The Commissioner,
Greater Chennai Corporation,
Rippon Building,
Chennai – 600 003.
5.The Director General of Police Santhome,
Mylapore, Chennai – 600 004.
6.The Commissioner of Police,
Greater Chennai,
Vepery, Chennai – 600 007. ...Respondents
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W.P.No.7620 of 2020
Prayer: Writ petition filed under Article 226 of the Constitution of India,
for the issuance of Writ of Certiorarified Mandamus, calling for the records
connected with the impugned order HDC/C.No.2043/24.4.2020 dated
24.04.2020 issued by the 4th respondent, quash the same and direct the 4th
respondent to make necessary arrangements to exhume the body of
Dr.Simon Hercules Hercules and bury the same at Kilpauk Cemetry.
For Petitioner : Mr.Ravi kumar, Senior Counsel,
for Mr.Elambharathi
For Respondents 1 to 3, 5 & 6 : Mr.V.Shanmuga Sundar,
Special Government Pleader
For Respondent 4 : Mr.P.H.Arvindh Pandian, AAG
assisted by
Ms.Karthikaa Ashok,
Senior Standing Counsel
ORDER
The death of a husband or wife is well recognized as an emotionally devastating event, being ranked on life event scales as the most stressful of all possible losses. The intensity and persistence of the pain associated with this type of bereavement is thought to be due to the emotional valence of marital bonds linking husbands and wives to each other. Spouses are co- managers of home and family, companions, sexual partners and fellow 2/30 https://www.mhc.tn.gov.in/judis/ W.P.No.7620 of 2020 members of larger social units. Although the strength of particular linkages may vary from one marriage to another, all marriages seem to contain each of these linkages to some extent.
2. The death of a spouse ends the relationship but does not sever all relational bonds. The sense of being connected to the lost figure persists, sometimes exacerbating a sense of having been abandoned, sometimes contributing to a sense of continuing in a relationship, although with an absent partner.
3. The case on hand is one such unfortunate event. The petitioner has lost her beloved husband due to Covid-19 infection and he has been buried in an inappropriate place instead of burying in a cemetery by observing the Christian ceremonies, the faith to which the petitioner and her husband belong.
4. The case of the petitioner's husband, the deceased Dr.Simon Hercules is a shocking one as the incident has given a go-by to all human values. The corpse of Dr.Simon Hercules was shunted from one burial 3/30 https://www.mhc.tn.gov.in/judis/ W.P.No.7620 of 2020 ground to another due to the objections raised by heartless human beings for allowing burial of Dr.Simon Hercules body who was a Covid-19 victim. Ultimately, Dr.Simon Hercules was buried in a place where people belonging to another faith are buried. The petitioner who is the wife of Dr.Simon Hercules and a Christian seeks for exhumation of the body of Dr.Simon Hercules and permit her to bury the body at Kilpauk Cemetery, a Christian Burial Ground. She gave a representation to the respondents for the said purpose which was rejected by the fourth respondent under the impugned order dated 24.04.2020 on the ground that it is not safe to exhume the body and bury the same at a different place. The devastated wife aggrieved by the said order, has preferred this writ petition.
5. Heard Mr.Ravikumar Paul, learned Senior Counsel for the petitioner, Mr.V.Shanmuga Sundar, learned Special Government Pleader for the respondents 1 to 3, 5 & 6 and Mr.P.H.Arvindh Pandian, Additional Advocate General assisted by Ms.Karthikaa Ashok, learned Senior Standing Counsel for the respondent 4.
6. Learned Senior Counsel for the petitioner drew the attention of this Court to the Covid-19 guidelines on Dead body management issued by 4/30 https://www.mhc.tn.gov.in/judis/ W.P.No.7620 of 2020 Government of India, Ministry of Health and Family Welfare, Directorate General of Health Services (EMR Division) dated 15.03.2020 and would submit the following:
(a) The transmission of Covid-19 is only through droplets and infection is not spread from a dead body and
(b) The guidelines makes it clear that the relatives of the victim are allowed to see the dead body and hence, it can be inferred that a dead body will not spread the infection.
7. Learned Senior Counsel for the petitioner then drew the attention of this Court to the WHO guidelines for Covid-19 infected dead bodies dated 24.03.2020 and would submit that the guidelines makes it clear that there is no evidence of persons having become infected from exposure to the bodies of persons who died from Covid-19. He would also submit that as per the said WHO guidelines, family and friends are allowed to view the body and are also allowed to bury the body or cremate.
8. Learned Senior Counsel for the petitioner would submit that originally permission was obtained from Kilpauk Cemetery for burying the 5/30 https://www.mhc.tn.gov.in/judis/ W.P.No.7620 of 2020 victim in the said cemetery and only due to the objections raised by some anti-social elements and under compelled circumstances, he was buried in a place where people belonging to another community were cremated/buried. Learned Senior Counsel for the petitioner would submit that the petitioner and her family are devout Christians and therefore, the deceased family are facing lot of mental agony on account of burial of Dr. Simon Hercules in a place meant for other faith.
9. Learned Senior Counsel for the petitioner also drew the attention of this Court to the observations recorded by the Division Bench of this Court in a suo motu writ petition namely Suo Motu W.P.No.7492 of 2020 dated 20.04.2020 involving the very same dead body, wherein according to him the Division Bench has categorically held that the scope and ambit of Article 21 of the Constitution of India includes the right to have a decent burial. According to the learned Senior Counsel for the petitioner, since Dr.Simon Hercules has been buried in an inappropriate place which affected the petitioner's fundamental right under Article 21 of the Constitution of India, the prayer sought for in this writ petition for exhumation of Dr. Simon Hercules body and for burying the same at Kilpauk Cemetery has to be 6/30 https://www.mhc.tn.gov.in/judis/ W.P.No.7620 of 2020 granted.
10. Learned Senior Counsel for the petitioner would further submit that without any basis, the fourth respondent has rejected the petitioner's request for exhumation on the ground that if the request is considered favourably, it could pose threat to public health and safety. He would further add that the body was buried a year back and even if assuming that there is some truth in the fourth respondent's statement, the said reason is no more applicable in view of the long passage of time.
11. Learned Senior Counsel for the petitioner also drew the attention of this Court to the report of the South African Ministerial Advisory Committee on Covid-19 dated 25.01.2021 which reveals that dead Covid- 19 bodies are not contagious.
12. Learned Senior Counsel for the petitioner then drew the attention of this Court to the following authorities:
(a) A decision of the Hon'ble Supreme Court in the case of Ram Sharan Autyanuprasi vs.Union of India reported in AIR 1989 SC 549 and 7/30 https://www.mhc.tn.gov.in/judis/ W.P.No.7620 of 2020 would submit that the right to accord a decent burial or cremation of a dead body should be taken to be part of the right to such human dignity.
(b) A decision of the Hon'ble Supreme Court in the case of Pt.Parmanand Katara vs. Union of India reported in 1995 (3) SCC 248 and would submit that the Supreme Court has held that the right to dignity and fair treatment under Article 21 of the Constitution of India is not only available to a living man but also his body after his death.
(c) A decision of the Division Bench of Bombay High Court in the case of Pradeep Ghandy vs. State of Maharashtra reported in 2020 SCC Online BOM 662 wherein it has been held that there is no evidence of persons getting infected by Covid-19 from exposure to the cadaver of a suspected / confirmed Covid-19 individual.
13. Learned Senior Counsel for the petitioner finally drew the attention of this Court to the impugned order passed by the fourth respondent and would submit that it is factually incorrect on the part of the fourth respondent to state that the burial had been carried out with full respects in accordance with religious rites. He would submit that no priest was present to conduct the burial as required according to the Christian 8/30 https://www.mhc.tn.gov.in/judis/ W.P.No.7620 of 2020 rites. He would further submit that no religious prayers or songs were sung at the place of the buried site. Therefore, according to him, to fulfill the wishes of the deceased as well as the petitioner and her family who are devout Christians, the body of Dr.Simon Hercules should be exhumed and be permitted to be buried at Kilpauk Cemetery by following the Christian rites.
14. Per contra, Mr.Arvindh Pandian, learned Additional Advocate General assisted by Ms.Karthikaa Ashok, learned Senior Standing Counsel appearing for the fourth respondent would vehemently oppose the exhumation of Dr.Simon Hercules body. He would submit that WHO guidelines does not specify on what grounds, a Covid-19 body could be exhumed. Hence, according to him, the petitioner cannot take shelter under the said guidelines for exhumation. Learned Additional Advocate General then drew the attention of this Court to the report (opinion) of the expert committee comprising of various health experts and would submit that the petitioner's request for exhumation has been categorically declined by expert committee with valid reasons. Learned Additional Advocate General also drew the attention of this Court to the By Laws issued under section 9/30 https://www.mhc.tn.gov.in/judis/ W.P.No.7620 of 2020 349(22)(a) of the Madras City Municipal Act IV of 1919 for the regulation of burial and burning grounds and other places for disposal of Corpses and in particular, he referred to By law No.14 which deals with conditions for reopening a grave. He would submit that as per the said By-law, there must be a minimum period of 14 years from the date of burial for reopening a grave, as in the instant case, only one year has elapsed from the date of the death and any exhumation now violated the said by-law.
15. Learned Additional Advocate General would submit that if the prayer sought for by the petitioner is granted, it will open a pandoras box as many persons irrespective of their faiths were buried/cremated at different places hurriedly on account of their death due to Covid-19 infection. He would submit that the relief sought for by the petitioner if granted will have far reaching ramifications which may become uncontrollable for the Government.
Discussion:
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16. The protection of life and personal liberty which is guaranteed under Article 21 of the Constitution of India has been interpreted by the Hon'ble Supreme Court in many cases. There are lot of rights which are included in Article 21 such as right to privacy, right against solitary confinement, right to legal aid, right to speedy trial etc. The Hon'ble Supreme Court in many cases has also observed and interpreted that right to have a decent burial is also included in Article 21 of the Constitution of India. The right to human dignity is not restricted to living human being but is available even after the death also. This view was recognized by the Apex Court for the first time in a Public Interest Litigation filed by an Advocate in the case of Pt.Parmanand Katara vs. Union of India reported in 1995 (3) SCC 248. Later in many cases, the Court held that the right to human dignity is also a right under Article 21 of the Constitution of India.
17. In Ashray Adhikar Abhiyan vs. Union of India reported in 2002 (2) SCC 227, the Hon'ble Supreme Court held that it is the obligation of the State to give a decent burial to a deceased person as per their Religious beliefs. The Madras High Court in the case of S.Sethuraja vs. Chief Secretary (W.P.MD.No.3885 of 2007) delivered on 28.10.2007 has also 11/30 https://www.mhc.tn.gov.in/judis/ W.P.No.7620 of 2020 held that in our tradition and culture, the same human dignity (if not more) with which a living human being is expected to be treated is also extended to a person who is dead.
18. Trespassing a burial place, places of worship and place of sepulcher is a cognizable offence under Section 297 of the Indian Penal Code which clearly prohibits irreverence to dead bodies. Section 297 of the Indian Penal Code reads as follows:
“Whoever, with the intention of wounding the feelings of any person, or of insulting the religion of any person, or with the knowledge that the feelings of any person are likely to be wounded, or that the religion of any person is likely to be insulted thereby, commits any trespass in any place of worship or on any place of sculpture, or any place set apart from the performance of funeral rites or as a depository for the remains of the dead, or offers any indignity to any human corpse, or causes disturbance to any persons assembled for the performance of funeral ceremonies, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.” Thus, the right to decent burial is protected under the Indian Penal Code as well. Infact, in the instant case, anti-social elements have been booked by 12/30 https://www.mhc.tn.gov.in/judis/ W.P.No.7620 of 2020 the police for preventing a decent burial for Dr.Simon Hercules at Kilpauk cemetery.
19. The Division Bench of this Court in a Public Interest Litigation involving the very same Dr.Simon Hercules, has also observed in its order dated 20.04.2020 in Suo Motu W.P.No.7492 of 2020 that the scope and ambit of Article 21 of the Constitution of India includes the right to have a decent burial and the Division Bench has also invoked and highlighted Section 297 of the Indian Penal Code in the said order.
20. Section 404 of the Indian Penal Code deals with dishonest misappropriation of a dead man's property. Section 404 of the Indian Penal Code reads as follows:
“404. Dishonest misappropriation of property possessed by deceased person at the time of his death — Whoever dishonestly misappropriates or converts to his own use property, knowing that such property was in the possession of a deceased person at the time of that person’s decease, and has not since been in the possession of any person legally entitled to such possession, shall be punished with imprisonment of either description for a term which may 13/30 https://www.mhc.tn.gov.in/judis/ W.P.No.7620 of 2020 extend to three years, and shall also be liable to fine; and if the offender at the time of such person’s decease was employed by him as a clerk or servant, the imprisonment may extend to seven years.” The Object behind Section 404 of IPC is to afford protection of a property belonging to a deceased person.
21. Section 499 of the Indian Penal Code which deals with defamation, also defines that libel or slander against a dead person also contributes the offence of defamation.
22 Section 503 of the Indian Penal Code which deals with criminal intimidation, also includes threatening a person with injuring the reputation of a dead person dear to him as an offence.
23. In a recent decision, the Division Bench of the Calcutta High Court in the case of Vineet Ruia vs. Principal Secretary, Ministry of Health and Family Welfare, Government of West Bengal and Others reported in AIR 2020 Cal 308 involving the disposal of dead bodies of Covid-19 victims after giving due consideration to the various decisions of 14/30 https://www.mhc.tn.gov.in/judis/ W.P.No.7620 of 2020 the Hon'ble Supreme Court as well as other High Courts recognized the fundamental right of any family member to perform the funeral rites for a Covid-19 victim. The relevant portions of the said judgment are extracted hereunder:
“ 20. By and large, whether it is for a theist or atheist, freedom of conscience and free profession and practice of religion is protected under Clause (1) of Article 25 of the Constitution. The term “religion” in that Clause need not necessarily be linked to any particular religion as is understood as a religious denomination. It is a matter of faith and of one's own conscience which could trigger the profession and practice of what may be religion in the larger sense to a particular individual. With this concept in mind, it needs to be delineated that it is not the religious practices of the different religious denominations which matter in such instances. It is a matter of connectivity with the person who has died and the near relatives may be in whatever degree of relationship. Fundamentally, human relationship between the parent and child, husband and wife, grandparent and grandchild, etc. is not based on any religious tenet. It is a matter of faith and conscience of every individual. If such a person is to take recourse to any practice and free profession on the foundation of freedom of conscience in terms of Clause (1) of Article 25 of the Constitution of India, it could 15/30 https://www.mhc.tn.gov.in/judis/ W.P.No.7620 of 2020 get abridged only by the reciprocal covenant that such activity should be subject to public order, morality and health and to other provisions of Part III of the Constitution. This is the inbuilt mode of controlling such activities even in terms of Clause (1) of Article 25. The eligibility of a person to perform the funeral rites, be it connected to cremation or burial, may be sometimes guided by factors which may be akin to accepted practice even in religious denominations. If we were to look at the varied practices among the Hindus as a whole or different denominations of Hindus, one thing is clearly certain; the facility to provide ritualistic offerings by way of water, flowers or even certain grains are quite often seen as fundamentally for the satisfaction of the person making such offer to the dead before burial/cremation, as the case may be. Post cremation rites including, receiving the mortal remains in the form of ashes and bones which are treated as sacred to the near relatives of the departed and further handling of those materials in accordance with faith and belief also stands accepted in such communities (profitable reading in this regard can be had from Garuda Purana, Vishnu Purana and other ancient Hindu texts and scriptures). In so far as Christians are concerned, if one were to look at different denominations, it can be seen that there are practices, which may with slight variations, generally provide for prayers before the dead bodies are disposed of by 16/30 https://www.mhc.tn.gov.in/judis/ W.P.No.7620 of 2020 burial and by offering prayers even after disposal on different dates and times depending upon the faith, belief and practice in different Churches. A perusal of canons would show that different ritualistic processes are delineated for such matters. We have mentioned it only to indicate that there are different practices available. In so far as the Muslims are concerned, whatever be the difference in beliefs and practices among the Hanafis, who are treated as a majority group of Sunnis in India, on one hand, and the Shias on the other hand, one clear thread of connectivity is the faith and belief that the disposal of human remains is a must as well as post Kabar (Burial) rituals (Certain passages from Al-Bahr-ur-Raiq will buttress this aspect). The family also intends to have its own practices carried forward to the extent it relates to their faith and belief. We refer to all these only to demonstrate that by and large the Indian community always has the desire for intricate practices in the form of rituals with the participation of near relatives of a deceased, following what could be permissible under given circumstances.
...
23. We are of the firm view that the right of the family of a Covid-19 victim to perform the last rites before the cremation/burial of the deceased person is a right akin to Fundamental Right within the meaning of Article 21 of the Constitution of India. While exercising their power to impose 17/30 https://www.mhc.tn.gov.in/judis/ W.P.No.7620 of 2020 restrictions on citizens in their way of life in the wake of outbreak of an endemic like Covid-19, a fine balance must be struck by the State and the local self-government institutions so that the aforesaid right of a citizen to perform the obsequies of his near and dear ones does not stand abridged or abrogated excepting for very compelling reasons. Having given our anxious consideration to the issue in hand, we have come to the conclusion that the immediate family members of Covid-19 victims be permitted to perform the funeral rites of the deceased subject to them following certain precautionary guidelines to eliminate/minimize the risk of them becoming infected by the deadly virus which has caused devastation in the form of loss of countless lives across the world.”
24. From the aforesaid decisions, it is clear that the law has recognized the fundamental right of a dead person to have a decent burial.
The Covid-19 guidelines for Dead body management issued by Government of India, Ministry of Health and Family Welfare, Directorate General of Health Services (EMR division) dated 15.03.2020 also does not empower the statutory authorities to dispose of Dead bodies of Covid-19 victims according to their whims and fancies. The guidelines also makes it clear that transmission of Covid-19 is only through droplets. Guidelines also reveals 18/30 https://www.mhc.tn.gov.in/judis/ W.P.No.7620 of 2020 that it is unlikely that there is a risk of spread of Covid-19 infection through a dead body. The relevant guidelines are as follows:
“2.Key Facts:
. The main driver of transmission of COVID- 19 is through droplets. There is unlikely to be an increased risk of COVID infection from a dead body to health workers or family members who follow standard precautions while handling body.
....
...
11.At the crematorium/Burial Ground ...
...
Viewing of the dead body by unzipping the face end of the body bag (by the staff using standard precautions) may be allowed, for the relatives to see the body for one last time.”
25. Similarly the WHO guidelines dated 24.03.2020 on infection, prevention and control for the safe management of a dead body in the context of Covid-19 also makes it clear that till date, there is no evidence of a person having become infected from exposure to the bodies of persons who died from Covid-19. The same guidelines also makes it clear that the 19/30 https://www.mhc.tn.gov.in/judis/ W.P.No.7620 of 2020 people who have died from COVID-19 can be buried or cremated. The relevant portions of the said guidelines reads as follows:
“...
To date there is no evidence of persons having become infected from exposure to the bodies of the persons who died from Covid-19.
....
Burial People who have died from Covid-19 can be buried or cremated.
Confirm national and local requirements that may dictate the handling and disposition of the remains.
Family and friends may view the body after it has been prepared for burial, in accordance with customs. They should not touch or kiss the body and should wash hands thoroughly with soap and water after the viewing.
Those tasked with placing the body in the grave, on the funeral pyre etc., should wear gloves and wash hands with soap and water after removal of the gloves once the burial is complete.”
26. The Indian Medical Association by its letter dated 22.04.2020 to the family of Dr.Simon Hercules (Covid-19 victim) after expressing their 20/30 https://www.mhc.tn.gov.in/judis/ W.P.No.7620 of 2020 condolences have also intimated the petitioner that they have written to the Government for cremation of the victim at Kilpauk Cemetery.
27. In the impugned order dated 24.04.2020 rejecting the petitioner's request for exhumation of her deceased husband and for burying the same at Kilpauk Cemetery, the fourth respondent has not considered the guidelines on dead body management issued by the Government of India, WHO guidelines for Covid-19 infected dead bodies, the Order passed by the Division Bench of this Court in Suo Motu W.P.No.7492 of 2020 dated 20.04.2020 as well as the decisions referred to supra and the applicable statutory provisions.
28. Since the Ministry of Home Affairs, Government of India has also been imposing restrictions on account of Covid-19 pandemic from time to time based on the prevalent situation, this Court also heard Mr.Sankara Narayanan, learned Additional Solicitor General of India. He has not raised any serious objection for granting the prayer sought for by the petitioner in this writ petition.
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29. With regard to the By laws referred to by the learned Additional Advocate General issued under section 349 (22)(a) of the Madras City Municipal Act IV, 1999 is concerned, By law No.14 which was relied upon has no applicability for the facts of the instant case. The said By law reads as follows:
“14.Conditions for re-opening a grave:
No non-masonry grave or masonry grave unprovided with the separate air-tight compartment prescribed in bye-law 12 shall be reopened within 14 years after the burial of a person above 12 years of age within 8 years of age or within 8 years after the burial of a child under 12 years of age, to bury another member of the same family unless a layer of earth not less than one foot thick be left undisturbed over the previously buried coffin. If on opening any grave any soil is found to be offensive such soil shall be left undisturbed. There shall never be less than three feet of earth between the topmost coffin and the grave.” As seen from the By law, it deals with cases where a family member is buried in the same place where another family member has already been buried. The case on hand is totally different as it involves exhumation of a 22/30 https://www.mhc.tn.gov.in/judis/ W.P.No.7620 of 2020 dead body on the ground that the dead body was buried in an inappropriate place and not in the place meant for Christians to which faith the petitioner belongs.
30. Therefore, this Court is of the considered view that by total non- application of mind to the law on the subject of exhumation, the impugned order dated 24.04.2020 has been passed by the fourth respondent.
31. Insofar as the exhumation for the purpose of enabling the family members of the deceased to perform their religious ceremonies and to bury the dead body at an appropriate place of their choice is concerned, there is a legislative vacuum. Even though under Section 176 Cr.P.C and Section 174(1) Cr.P.C, the Magistrate and the Officer-in-charge of the Police Station are having the powers to order for exhumation, those cases do not deal with the case on hand, where the buried person or his family members are not involved in any criminal offence.
32. The Hon'ble Supreme Court in the following decisions has held that when there is a legislative vacuum and until such time, the said vacuum is filled by the Legislature, the constitutional Courts have got the power to 23/30 https://www.mhc.tn.gov.in/judis/ W.P.No.7620 of 2020 fill the gap as an interim arrangement:
(a) Vishaka and Others vs. State of Rajasthan and Others reported in (1997) 6 SCC 241. Sexual harassment at work place was the main issue in the case before the Apex Court. There was no law existing then in that area.
The Hon'ble Supreme Court took clue from International Conventions and drafted guidelines for dealing with sexual harassment at the work place and those were to be in place until legislation was enacted for the said purpose.
(b) In Supreme court Advocates-on-Record Associations vs. Union of India (Second Judges Case in 1993) a 9-Judge Bench laid down guidelines and prescribed procedural norms in regard to the appointment of Supreme Court Judges, Chief Justice and Judges of the High Court and transfer of Judges from one High Court to another.
(c) In Vineet Narain vs. Union of India reported in 1998 1 SCC 226, the Apex Court gave exhaustive directions to enhance the efficiency of the Central Bureau of investigation (CBI) and even directed the Central Vigilance Commission to be given statutory status and held that where executive fails in filling the gap in legislation, the judiciary must step in and provide a solution till the legislation covers the field.
(d) In Common Cause vs. Union of India reported in (2008) 5 SCC 24/30 https://www.mhc.tn.gov.in/judis/ W.P.No.7620 of 2020 511, the Hon'ble Supreme Court observed that if there is a buffer zone unoccupied by the legislature or executive which is detrimental to the public interest, judiciary must occupy the field to sub-serve public interest. The case on hand also falls under the aforementioned category where ther e is a legislative vacuum. There is no legislation in India dealing with cases where family members seek for exhumation of the dead body for the purpose of burying the same and for performing the ceremonies in the place meant for their religious faith.
33. Therefore, this Court will have to necessarily step in to protect the fundamental right of the petitioner and her family members for giving a decent burial to Dr.Simon Hercules (Covid-19 victim), who is none else than the petitioner's husband and an apt person eligible for the said right.
34. This Court made a Google search of the legislations available in other countries on exhumation and found that only very few countries are having a legislation. One such legislation available is in Ireland under section 46 of the Local Government (Sanitary Services) Act 1948 as amended by Section 4(2) and the Second Schedule of the Local 25/30 https://www.mhc.tn.gov.in/judis/ W.P.No.7620 of 2020 Government Act, 1994. Some of the safeguards taken by the Irish Government under the said legislation which are appropriate for this case are enumerated in the operative portion of the order.
35. This Court after perusing and examining the safeguards adopted in Ireland for the purpose of exhumation is of the considered view that till such time, a legislation on exhumation comes in place in India, the same safeguards shall be followed while exhuming Dr.Simon Hercules body. Apart from safeguards meant for a normal dead person, all the Covid-19 protocols imposed by the Central and State Government from time to time will have to be necessarily followed while exhuming the body and re- burying the same at the Cemetery and while performing religious ceremonies by the family members.
36. For the foregoing reasons, the impugned order dated 24.04.2020 issued by the fourth respondent is hereby quashed and the writ petition is allowed by directing the fourth respondent to exhume the body of Dr.Simon Hercules from Velangadu Burial Ground and re-bury the same (remains available) at Kilpauk Cemetery in the presence of the petitioner and her 26/30 https://www.mhc.tn.gov.in/judis/ W.P.No.7620 of 2020 family members who are at liberty to perform all religious ceremonies within a period of two weeks from the date of receipt of a copy of this Order by strictly observing the following conditions:
(a)The Health Officer nominated by the fourth respondent shall be present and supervise the exhumation. This is to ensure that all procedures are complied with and everyone present shows respect to the deceased person at all times and public health is protected.
(b) During the exhumation, the Health Officer shall ensure that the correct grave is opened.
(c) The Health Officer shall also supervise the re-burial at the Kilpauk Cemetery.
(d) The exhumation should start as early as possible in the early morning to ensure maximum privacy.
(e) Screens should be placed around the existing grave/burial plot to protect the exhumation from public view and to guarantee privacy. If necessary, an area of the graveyard is cordoned off from public view to ensure privacy.
(f) Workers must treat the neighbouring burial plots with care.
(g) Disinfectants and disposable protective clothing (including respiratory facemasks) must be available to workers and disposed of safely after the exhumation.
(h)All remains and pieces of casket, webbing etc., are placed in the new casket (shell).27/30
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(i) All Covid-19 protocols issued by the State and Central Government from time to time shall be strictly followed.
(j) Sufficient Police protection shall be provided both at Velangadu burial ground and Kilpauk Cemetery for the smooth operation of the exhumation and the re-burial process.
(k) Videography of the exhumation and re-burial process shall be done.
No costs. Consequently, connected miscellaneous petition is closed.
31.03.2021 nl/vsi2 Note: Issue order copy on 31.03.2021 Index:Yes/No Internet:Yes/No Speaking/Non-speaking order To
1.The State of Tamil Nadu, Represented by Chief Secretary to Government, 28/30 https://www.mhc.tn.gov.in/judis/ W.P.No.7620 of 2020 Secretariat, Chennai – 600 009.
2.The Principal Secretary, Home Department, Secretariat, Chennnai – 600 009.
3.The Principal Secretary, Health and Family Welfare Department, Secretariat, Chennai – 600 009.
4.The Commissioner, Greater Chennai Corporation, Rippon Building, Chennai – 600 003.
5.The Director General of Police Santhome, Mylapore, Chennai – 600 004.
6.The Commissioner of Police, Greater Chennai, Vepery, Chennai – 600 007.
ABDUL QUDDHOSE, J.
nl 29/30 https://www.mhc.tn.gov.in/judis/ W.P.No.7620 of 2020 Pre-delivery order in W.P.No.7620 of 2020 31.03.2021 30/30 https://www.mhc.tn.gov.in/judis/