The Calcutta High Court on 21st September, Monday altered its prior judgment passed on 16th September, Wednesday and ruled that only 6 close kin of the deceased person who died due to Covid-19 would be permitted to accompany the body for performing the final rites and rituals.
The division bench comprised of Chief Justice T B Radhakrishnan and Justice Arijit Banerjee, who modified the Judgment of 16th September after listening to the plea of the petitioner and the Advocate General of the State in person.
The judgment of 16th September was observed and the Court gave a firm view that the rights of the family members of COVID patient to perform funeral and last rites before the cremation or burial of the deceased person is a fundamental right of the family of the deceased person laid under the Article 21 of the Constitution of India. The Bench further elaborated that traditions and rites and rituals are intrinsic for the deceased person last rites and as per Article 25 of the Constitution of India, one has a right to a decent funeral as it comes under the segment of freedom of conscience and free profession, practice and propagation of religion subject to public order, morality and health and to the other fundamental rights mentioned under Part III of the Constitution.
The order delivered on Monday, 21st September had altered the 2 paragraphs from the previous order of 16th September and are stated as follows-
Paragraph (i) in 16th September Judgment- when post mortem of the dead body is not required, the dead body shall be handed over to the immediate next of kin of the deceased i.e. the parents/surviving spouse/children, after completion of hospital formalities. The body should be secured in a secured bag. The face end of the body should be preferably visible and the exterior of which will be appropriately sanitized/ decontaminated so as to eliminate or minimize the risk to people transporting the dead body.
Modified Paragraph (i) in 21st September Judgment- When post mortem of the dead body is not required, the dead body shall be handed over to the immediate next of kin of the deceased i.e. the parents/surviving spouse/children; which shall be no more than 6 persons; after completion of the hospital formalities, for being taken to the burial ground/ crematorium directly. The body should be secured in a secured bag. The face end of the body should be preferably visible and the exterior of which will be appropriately sanitized/ decontaminated so as to eliminate or minimize the risk to people transporting the dead body.
Paragraph (viii) in 16th September Judgment- The persons handling the dead body shall go directly from the hospitals to the crematorium/ burial ground, as the case may be, and not to anywhere else including the home of the deceased where he/she last resided.
Modified Paragraph (viii) in 21st September Judgment- The persons handling the dead body shall go directly from the hospitals to the crematorium/ burial ground as may be indicated by the State/ LSGI official as the case may be and not to anywhere else including the home of the deceased where he/she last resided.
The Calcutta High Court further turned down the plea of the State Health Department in its verdict of 21st September where they were also seeking an alteration in the judgment of 16th September that was directing the department to hand over the bodies of COVID patients to the next of kin.
The Advocate General Kishore Datta had appeared for the petition on behalf of the Principal Secretary of the State Health Department and contended that the system might create a health hazard for other people, so the court should modify its order and let the department only conduct the last funeral rites. The Court can permit the relatives of patients to see the body from the hospital.
However, the Division Bench didnt favor this view and dismissed the plea of the Health Department but it was definitely stressed in the order that the kin/relative of the deceased shall take the body directly to the nearest crematorium or burial ground from the hospital and nowhere else as it could pose a threat to the kin or other people too accompanying the dead body.
Lastly, it has been reported that Kolkata Municipal Corporation (KMC) has approached ICMR for advice and suggestion post the 16th September judgment of Calcutta High Court.
