This article on ‘Legal Rights of a Dead Person in India‘ was written by an intern at Legal Upanishad.
There is one common phrase in our culture, “what has come will go”. Death is a natural event and no one has control over it. Hence, the right to have a decent demise is every dead person’s legal right. During the pandemic of Covid-19, guidelines for the proper disposal of COVID-19-infected bodies were released by the WHO and the Indian government.
The Supreme Court of India has declared that the Right to Die with Dignity is an essential aspect of the Right to life, provided under Article 21 of the Indian Constitution. Indian penal code also performs a vital role in protecting the rights of a deceased person. The laws provided to a dead person in India mainly cover two themes i.e. offenses towards corpses and proper funeral of the deceased.
This article will make you understand what the legal rights of a dead person in India are and what role, the Indian Penal Code and other acts play in the proper demise of a dead person.
Meaning of Death in a legal context:
Under the law, death is the declaration that the person has passed away. Legal requirements for this kind of acknowledgment typically include the identification of a corpse or a statement from the doctor that the person is dead.
Also, according to law, if a person is missing for a long period, say for at least seven years, it is usually presumed by the court that the person is no longer alive. After registration in the civil registry, the death certificate is issued to a person who is dead, which is necessary for claiming benefits and completing other legal requirements.
Right to Die with Dignity under the constitution of India:
The right to Die with Dignity is an integral part of the Right to Life under Article 21 of the Constitution of India. The courts have expanded the scope of Article 21 for providing a respectful demise to a deceased person.
In the landmark case of Common Cause (A Regd. Society) v. Union of India & Anr the Supreme Court of India (comprising a bench of five judges), declared that Article 21 of the Indian Constitution’s right to life intrinsically includes the right to die with dignity.[1]
According to the Supreme Court’s ruling, a person who is, in a permanent vegetative state, may choose voluntary euthanasia, and they may also draft a living will that instructs them to forego receiving healthcare if they have a serious condition.
Role of the Indian Penal Code in the legal rights of a dead person:
- Section 297 of IPC:
According to sec 297 of the Indian Penal Code, anyone who commits any trespass in a site of worship or on a grave or at any place set aside for the execution of funeral rites, or do any indignity with a human body (dead), or disturbs anyone who has gathered to perform funeral rites of a deceased person, are punishable under the law.[2]
Anyone who commits such offenses shall be punishable with imprisonment, which may extend to 1 year and a fine will additionally be imposed or both.
- Section 404 of IPC:
Under IPC, any person who dishonestly misappropriates the property of a deceased person at the time of his death shall be punishable with imprisonment which may extend to 3 years, and the offender will be liable for a fine as well.
- Section 499 to section 502 of IPC:
Sec 499 to sec 502 of the IPC deals with Defamation. Sec 499 says that if any imputations are put on the deceased person, which would likely damage the reputation of the person in the society, (in the same way, that would damage the reputation of the person if he/she were alive) or seeks to hurt the sentiments of his/her family members or other close relatives.
Any person who commits such acts is punishable with single imprisonment and a fine will additionally be imposed or both. Sec 500, sec 501, and sec 502 of IPC deal with punishment for such offenses.
- Sec 503 of IPC:
Indian Penal Code provides for the right against criminal intimidation, under sec 503. Any person who commits the offense which falls under the ambit of criminal intimidation shall be punishable with imprisonment which may extend to 2 years or a fine or both.
THOTA: The Transplantation of Human Organs and Tissues Act, 1994
The Transplantation of Human Organs and Tissues Act, of 1994 was enacted to create standards and regulations for the preservation, transplantation, and removal of human organs solely for medical reasons. This act also prohibits the commercial dealings of human organs as well as anything related to or incidental to such dealings.[3]
NHRC: protecting the rights of a dead person
NHRC which stands for National Human Rights Commission mandated the fair treatment of dead bodies, as Article 21 is not only limited to living human beings but also to the corpse.
In the milestone case of Parmanand Katara v. Union of India (1989), the Indian apex court acknowledged that receiving fair treatment and dignity is not a right that is only limited to living human beings but also a legal right of a deceased person. It is the role of the state to defend the rights of the deceased and prohibit wrongdoing over the corpse in both accidental and natural deaths.[4]
Fundamental Principles for Maintaining Dignity and Protecting the Rights of the Dead person under NHRC:[5]
- There should be no discrimination in bodily treatment based on caste, location, gender, religion, or other factors.
- Any sort of physical exploitation of the dead body is prohibited.
- The departed have the right to a dignified and timely cremation or burial service.
- The right to justice is being provided to the departed in case his death happened, due to any kind of crime.
- The deceased’s will, if any, must be observed and honored.
- The deceased individual shall not be defamed in any way.
- The right to privacy is being provided to the deceased, which is the ability to restrict the broadcast of information regarding a person’s confidentiality.
Conclusion:
Irrespective of religion, gender, caste, and so on, the Right to die with dignity is a legal right of every deceased person. Several rights have been provided to the deceased person to protect their dignity.
Fair treatment is what is not only limited to living human beings but also to departed souls. Hence, the government must do everything possible to avoid inappropriate body disposal and provide a respectful going-away of the corpse.
References
[1] Devina Srivastava. (2018, April 18). (Passive Euthanasia and Living Wills). Retrieved: https://ohrh.law.ox.ac.uk/right-to-die-with-dignity-a-fundamental-right-indian-supreme-court-allows-passive-euthanasia-and-living-wills/#:~:text=In%20delivering%
[2] (IPC 297 Section – Trespassing on burial places). Retrieved: https://indianconstitution.guru/ipc/ipc-297/
[3] Shreyash Mitta. (2018, July 9). (All about Transplantation of Human Organs Act, 1994 By: Shreyash Mittal). Retrieved: https://www.latestlaws.com/articles/all-about-transplantation-of-human-organs-act-1994-by-shreyash-mittal
[4] (2021, May 14). (National Human Rights Commission, India). Retrieved: https://nhrc.nic.in/sites/default/files/NHRC%20Advisory%20for%20Upholding%20Dignity%20%26%20Protecting%20the%20Rights%20of%20Dead.pdf
[5] (National Human Rights Commission, India). (n3)