Right To Dignified Last Rites Is A Fundamental Right Under Articles 14, 15, 21 & 25; State Must Ensure Equal Access To Burial Grounds: Rajasthan High Court - 2025-09-03

Right to Dignified Last Rites is a Fundamental Right, State Must Ensure Equal Access to Burial Grounds: Rajasthan HC

JODHPUR: In a significant ruling affirming the sanctity of human dignity even in death, the Rajasthan High Court has declared that the right to dignified last rites is a fundamental right protected under Articles 14, 15, 21, and 25 of the Constitution. A Division Bench comprising Dr. Justice Pushpendra Singh Bhati and Mr. Justice Bipin Gupta held that public lands earmarked for cremations or burials cannot be monopolized by any single community and directed the State of Rajasthan to formulate a uniform policy to ensure non-discriminatory access for all citizens.

The court lamented the "deep anguish" of having to adjudicate on a matter where "the mortal remains of an individual become the cause of strife," stating that such disputes inflict indignity not just on the deceased but on the entire living community.

Case Background

The writ petition was filed by the Kanchan Patil (Mirasi) Samaj, a community residing in Western Rajasthan with origins in the Jasnathi Jat community, which later embraced Sufi Islam. Despite their affiliation with Islam, the community retained many of its original customs, leading to a unique cultural identity. This distinctiveness became the basis for their exclusion from using common burial grounds (kabaristan) by other communities and the Rajasthan Muslim Waqf Board, which claimed administrative control over the land.

Arguments from Both Sides

• Petitioner's Arguments (Kanchan Patil Samaj):

  • Mr. Moti Singh, counsel for the petitioner, argued that the burial ground in question is public land vested in the State of Rajasthan and not the exclusive property of any community or the Waqf Board.
  • He contended that denying the community access based on their mixed customs is arbitrary, discriminatory, and a violation of their fundamental rights to equality (Art. 14), non-discrimination (Art. 15), life with dignity (Art. 21), and freedom to practice religion (Art. 25).
  • The inaction of the Jodhpur Development Authority, despite representations, has led to repeated indignities for the community.

• Respondent's Arguments (Rajasthan Board of Muslim Waqfs):

  • The Waqf Board asserted that although not created by a formal instrument, the land had acquired the character of a waqf property through long and continuous use for Muslim burials.
  • It claimed that the burial ground is available to all individuals governed by Muslim personal law without discrimination and that the petitioner's grievance was unfounded as they could use it like any other Muslim.

Court's Constitutional and Legal Reasoning

The High Court undertook a profound examination of constitutional principles, statutory duties, and international human rights law to arrive at its decision.

• Dignity in Death under Article 21: The court began with the philosophical premise that "Mankind and life may divide, but death unites." It invoked the Indian philosophy of pañchatatva (five elements) to emphasize that the final rites are a solemn recognition of a human's return to nature. Citing Supreme Court precedents like Pt. Parmanand Katara v. Union of India and Ashray Adhikar Abhiyan v. Union of India , the bench reiterated the established legal principle: > "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 to his body after his death."

• Violation of Articles 14, 15, and 25: The court found that excluding the petitioner community from a common burial ground was a clear violation of several fundamental rights. It held that such exclusion offends the guarantee of equality (Art. 14), perpetuates social discrimination forbidden by Article 15, and constitutes a direct interference with the freedom to practice religion, including final rites, under Article 25.

• Statutory Duty of the State: The judgment highlighted Section 275 of the Rajasthan Municipalities Act, 2009, and Section 104 of the Rajasthan Panchayati Raj Act, 1994. These provisions impose a statutory duty on public authorities to regulate and maintain burial and cremation grounds for the collective interest, preventing their appropriation by any sectarian group.

• International Human Rights Law: Reinforcing its reasoning, the court referred to the Geneva Conventions, the ICCPR, and the National Human Rights Commission's (NHRC) Advisory (2021), all of which underscore the universal principle of dignity in death. The court noted that these international instruments align with India's constitutional guarantees, making the denial of burial access a breach of both domestic and international commitments.

Final Decision and Directives

The Rajasthan High Court unequivocally held that discrimination in death is as unconstitutional as discrimination in life. It observed that segregating burial grounds based on caste and religion has "created havoc" and hampers individual dignity.

Recognizing the need for a structured solution, the court stated:

"It is, thus, high time that the State formulates a uniform policy to deal with the burial/cremation/shamshan/any kind of public place utilised for the purpose of performing post-death rituals... time has come for the State to adopt a common policy equally applicable to all citizens, while taking into account the requirements of various beliefs."

The court directed the Additional Advocate General to file an affidavit outlining the State's plan for organizing and regulating post-death rituals for all sections of society in a common, harmonious manner. The matter has been listed for further hearing in two weeks.