IMPORTANT POINT
The right to decent burial is a facet of the right to life guaranteed under Article 21 of the Constitution of India.

JUDGMENT :

V.G. ARUN, J.

1. The not so pleasant facts emerging from these writ petitions are as under:

The dead body of an aged lady, who had been suffering from cancer for long, was quickly disposed of by her son, by burying the corpse in the ancestral property sold to a third person. According to the son, the burial was done with the consent of the present owner. In his hurry to dispose of the corpse, the son had accidentally buried the dead body of his mother in the land lying contiguous to his erstwhile ancestral property. On being informed about the burial, the owner of the adjacent land complained to the jurisdictional Sub Divisional Magistrate who, after hearing all concerned, issued Order No. RDOCHN/5159/2022/C1 dated 07.10.2022, directing the son to disinter the body within one week, failing which the Secretary of Amballoor Panchayat was to get the body exhumed, and bury it in the Panchayat Burial Ground in accordance with the Kerala Panchayat Raj (Burial of Unclaimed Corpses and Carcasses) Rules, 1996 (‘the Rules’ for short). W.P. (C) No. 37339 of 2022 is filed by the owner of the property where the body was buried by mistake, seeking enforcement of the direction issued by the Sub Divisional Magistrate. W.P. (C) No. 33292 of 2022 is filed by the son, challenging the very same order.

2. Heard Advocate Sherry J. Thomas, learned Counsel appearing for the petitioner in W.P. (C) No. 37339 of 2022, Advocate Imam Grigorios Karat, learned Government Pleader and Advocate T.K. Ajithkumar (Valath), learned Standing Counsel for the Panchayat. The learned Counsel for the petitioner in W.P. (C) No. 33292 of 2022 was absent on the last few posting dates.

3. Advocate Sherry J. Thomas contended that no person has the right to bury a dead body in another person's property without express consent. It is argued that the buried body is liable to be removed forthwith, since the faith and custom of his client does not permit such burial.

4. Advocate T.K. Ajithkumar contended that the Rules are applicable only in the case of unclaimed corpses, while in the instant case, the dead body was buried by the son himself. Therefore, the Sub Divisional Magistrate could not have directed the Panchayat to get the body exhumed and buried in accordance with the Rules.

5. Learned Government Pleader submitted that in the peculiar facts and circumstances involved, the Sub Divisional Magistrate was justified in passing the order.

6. The constitutional courts of this country have declared the right to decent burial to be a facet of the right to life guaranteed under Article 21 of the Constitution of India. In Parmanand Katara (Pt.) vs. Union of India, (1995) 3 SCC 248, while declaring paragraph 873 of the Punjab Jail Manual, which required the body of a condemned prisoner to remain suspended for half an hour, to be directory and not mandatory, the Supreme Court held that the right to dignity and fair treatment under Article 21 is not only available to a living man, but also to his body after death. This view was reiterated in Mohammad Latief Magrey vs. State (UT of J&K), 2022 SCC Online SC 1203 also. Therein, the prayer for exhumation made by the relatives of a foreign terrorist, who was shot dead and buried by the authorities, was declined by the Supreme Court, finding that the authorities had buried the body with dignity. For reaching such conclusion, the court was also took guidance from the following words of Justice Cordozo:

“The dead are to rest where they have been lain unless reason of substance is brought forward for disturbing their repose.”

Even though the prayer for exhumation was declined, the observation of the Apex Court that even a dead person has the right of treatment to his body with respect and dignity, which he would have deserved had he been alive, assumes relevance.

7. On a philosophical note, death is that beautiful moment when you are finally at peace, relieved of the shadows of yesterday and the uncertainties of tomorrow. That beautiful moment