Law is a tool of the mankind which comprises of regulations of behaviour, activity or conduct of an individual, created and imposed by the State. The chief purpose of the law is to bring tranquillity and firmness in the community. The law has not yet explained who is a dead person but it has acknowledged several rights available to dead person same as that of a living person. The customary belief in our nation is that unless the final rituals are performed prior to the burial or cremation, the soul of the deceased will not rest in peace. 

This belief is deep-rooted in our nation and has psychological and emotional backing. It is believed that responsibility is owed to both the community and the deceased that the body is buried without any unwanted hold-up. It is well-founded that the right to life guaranteed by the Constitution of India comprises the right to a decent burial.

Introduction: Right to Decent Burial – A Fundamental Right

On 14 September 2020, a 19-year-old Dalit woman was gang-raped in the Hathras district of Uttar Pradesh, allegedly by four upper-caste men. After battling for her life for two weeks, she passed away in a hospital in Delhi, and was hurriedly cremated the same night itself at about 2:30 am on 29 September by the Uttar Pradesh Police, without the consent of her family and even without informing them. 

It is further alleged that petrol was used for burning the corpse. As if the crime of rape committed was not monstrous and cruel enough, the deeds of the police and the District Collector, their ill-mannered and heartless outlook, the absolute ignorance towards the sentiments and utter absence of empathy towards the family of the victim are actions which run horridly against humanity. The form of cremation is prima facie a violation upon the human rights of both the victim and her family, guaranteed under the Constitution of India (“the Constitution”).

The right to life encompassed under Article 21 of the Constitution has been held to be the most living and developing Article in the constitution. It says that “No person shall be deprived of his or her life or personal liberty except according to a procedure established by law”. Article 3 of the Universal Declaration of Human Rights also states ‘Everyone has the right to life, liberty and the security of person.’ The right to life is therefore, unquestionably the most basic and important of all rights.

Further, the courts in the profusion of cases have embarked upon and mentioned that the right to life is not solely a corporeal right but comprises within its purview many other rights such as the right to live with dignity, right to shelter, right to livelihood, right to health, etc. 1Francis Coralie Mullin v. Union Territory of Delhi, 1981 AIR 746, 1981 SCR (2) 516; Shantistar Builders v. Narayan Totame AIR 1990 SC 360; Parmanand Katara v. Union of India, 1989 AIR 2039, 1989 SCR (3) 997; Milk Men Colony Vikas Samiti v. State Of Rajasthan, AIR 2007 SC 1046

Decent Burial

The Right to live with dignity is not only accessible to a living man but also to his body after his demise. That means it reaches out up to the point of death of a person, including the dignified procedure of death. If we throw light on the interpretation of ‘dignified procedure of death’, it will extend to dignified disposal of the deceased as well, i.e. the right to decent burial or cremation.

Therefore, whenever the ‘right to decent burial’ is infringed, it can be said that ‘right to die with dignity’ is violated too. In Ashray Adhikar Abhiyan v. Union of India 22002 WCP 143 of 2001, it was held that it is the duty of the State to provide a decent burial to the deceased person according to their religious beliefs.

This has been reiterated in many other cases as well. 3Ramji Singh @ Mujeeb Bhai v. State of U.P. &Ors(2009) 5 Alj 376; Pradeep Gandhy v. State of Maharashtra (2020) SC Bom 662; Common Cause v. Union of India (2018) SC 208 The United Nations Commission on Human Rights in its 2005 resolution on Human Rights and Forensic Science emphasized the significance of proper handling of human remnants, including their correct treatment and disposal along with care for the requirements of the families. India is a signatory to the said resolution and therefore bound by it. However, India has neither put the guidelines of the resolution into practice nor has adopted a proper legal framework concerning the same.

Under Section 297 of the Indian Penal Code, if any person conducts any act of indignity to any human corpse, or causes interference to any persons gathered for the discharge of funeral rites shall be penalized with imprisonment of either a term which may extend to one year, or with fine, or with both. The Right to a decent funeral can also be detected in Article 25 of the Constitution which guarantees freedom of conscience and free profession, practice and propagation of religion. This right, even though is subject to public order, morality and health, does not mean that the state can compromise with the fundamental right guaranteed to the citizens of our country.

The Course of Action

Decent Burial

India is a nation which observes the religion of compassion, which means that we have to respect each other in life and in death. The conduct of the officials in the Hathras case and the way of cremation of the victim is unpardonable and it gives rise to some major questions.

  • Which law gave the power to the State to cremate a dead body of the victim of an atrocious crime without the assent of her family?
  • What was the earnestness on the part of the State to cremate the dead body of the victim in the middle of the night, against the assent of the victim’s family?
  • Was it for dismantling of evidence?
  • Who is answerable, how to set their liability and responsibility and how the family could be atoned for the same?

Delicate rights of the people such as the right to decent burial or cremation as per customs and believes followed by the family, have to be taken into due consideration by the authorities. If factors or reasons such as maintenance of law and order come in conflict with such valuable rights, the situation needs to be operated dexterously and accountably with an authentic appreciation of both the particulars as such important rights cannot be treaded or played with carelessly or capriciously.

The rights of every individual in the Country and the State particularly that of the poverty-stricken and the oppressed such as the deceased victim and her family members are supreme and the Courts are under a tethered obligation to make sure that the said rights guaranteed under the Constitution are safeguarded no matter what. No person has the right to wallow in personality murder of the victim just as the accused should not be declared culpable prior to a fair hearing.

The State government should guarantee the welfare and safety of the victim’s family member and also make sure that the analysis or investigation which is being carried-on in the issue, either by the Special Investigation Team or by any other office such as the Central Bureau of Investigation, shall be kept in full secrecy.


Decent Burial

The steering basis of administration and management should be put to work for people and safeguard their rights, instead of commanding and dominating as was the scenario before independence. Presently, there is a pressing need for the passing of legislation and provisions which will make sure the right regulation of burial or crematoria sites. The abhorrent character of the Hathras case has the capacity to fix standards of acceptable cremation or burial and develop rules to safeguard the same. Moreover, the case has compelled the Courts to re-analyze the purview of the right to a decent burial.

The evidently unparalleled arbitrariness of the officials can be regarded as one of the rarest of the rare cases and therefore must be strictly dealt with as per the instructions of the law. The administrative and police officials should take powerful actions to stop such barbaric conducts in the future. If any such events occur, aside from initiating criminal proceedings against those accountable for such cruelties, the State Government should straight away suspend the District Magistrate or Collector and police officials departmentally if they do not –

  • Stop the event if it has not already happened but they are aware of it prior to the event, or
  • If it has happened, they do not immediately arrest the offender and others involved and initiate criminal proceedings against them.

This case therefore must be a revelation for the creators of public guidelines, to evaluate the part played by and nature of the State in handling with such cases in the future. Hence, stronger implementation of laws is the need of the hour.

Do you like Binoosha Benoy K's articles? Follow on social!
Comments to: The Hathras Cremation – The Right to Decent Burial of the Deceased

Your email address will not be published. Required fields are marked *

Attach images - Only PNG, JPG, JPEG and GIF are supported.


Welcome to Law Primis

We are glad that you are joining our community
Join Law Primis

Subscribe to our newsletter!

Join our mailing to receive the latest articles from our writers.