Right to Life and Right of Dead Person

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Introduction

“The care of human life and happiness and not their destruction is the first and only legitimate object of the governance.” Everyone in the world has the right to life, liberty and the security of person. This is the Universal truth in the world and the right to life is the most fundamental of all rights. As human rights can only attach to living beings, one might expect the right to life itself to be in some sense primary, since none of the rights would not have any value or utility without it.

Background

A right to life is a right to have or strive for whatever one needs to live, provided that having it does not violate rights of other beings. In a free, democratic society, each of us has a right to health, a right to privacy, a right to food, a right to livelihood and right to education. But have we ever stopped to wonder what it is that guarantees us these rights? All of this, and much more is guaranteed by eighteen words enshrined in the Constitution of India. Which protect Your Life and nobody, Including the government, can try to end your life. It also means the government should take appropriate measures to safeguard life by making laws to protect you and in some circumstances, by taking steps to protect you if your life is at risk. Even Public should also consider your Right to life when making decisions that might put you in danger or that effect your life expectancy.

Meaning of Right to life

Everyone has the right to life, liberty and the security of person.’ The right to life is undoubtedly the most fundamental of all rights. All other rights and quality to the life in question and depend on the pre-existence of life itself for their operation. As human rights can only attach to living beings, one might expect the right to life itself to be in some sense primary, since none of the other right would have any value or utility without it. There would have been no Fundamental Rights worth mentioning if Article 21 had been interpreted in its original sense.

Concept of Right to life In India

Article 21 of the constitutions says: –

 “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

According to Bhagwati, J., Article 21 “Embodies a constitutional value of supreme importance in a democratic society.”

Iyer, J., has characterized Article 21 as “the procedural magna carta protective of life and liberty.

This right has been held to be the heart of the constitution, the most organic and progressive provision in our living constitution, the foundation of our laws.

Right to life of a person is recognized as the most pivotal fundamental right enshrined under this article of constitution. The framers of the constitution ensured that Article 21 applies to natural person and this right is available to citizens as well as non-citizen also. In the Expanded meaning attributed to Article 21 of the constitution, it is the duty of the state to create a climate where members of the society belonging to different faiths, caste and creed live together and therefore, the state has a duty to protect their life, liberty, dignity and worth of an individual which should not be jeopardized or endangered. “Article 21 lies at the soul of the constitution of India. If any Individual, including an individual not being a citizen, is aggrieved by the action of the state brought about by law under Article13, and such action leads to a violation of the right of the right to life and liberty of such an individual, then a writ petition can be filed under Art 32 to the Supreme court or under Art 226 to the High Court.”

Therefore Article 21 itself is a code of rights that captures the heart and soul of the constitution by prioritizing the freedoms of an individual and protecting them from the might of the state. These rights so available to citizens are yet to be realized by the deprived sections of the society because of the several constraints viz, financial, social, educational, lack of awareness etc. The Liberal interpretation of Article 21 also focuses on the protection of liberty against police excesses and state violence. Strong institutional foundation is needed for the said purpose. This code of rights includes fundamental rights that have been interpreted to be a part of “life” or “personal liberty.” [1]

Scope of the Right to Life

The Right to life entails the rights not to be deprived of life arbitrarily or unlawfully by the country or its agents. A killing may be arbitrary even if it is not unlawful under the law of the country where it occurs.

The Right to life includes a duty on governments to take appropriate steps to protect the right to life of those within its jurisdiction and to investigate arbitrary or unlawful killings and punish offenders. This means that governments are required to enact laws that criminalize unlawful killings and that the laws must be supported by law enforcement machinery for the prevention, investigation and punishment of breaches of the criminal law.” [2]

Legal Interpretation

The scope of Article 21 was a bit narrow till 50s as it was held by the Apex Court in A.K. Gopalan vs State of Madras that the contents and subject matter of Article 21 and 19(1)(d) are not identical and they proceed on total principles. In this case the word deprivation was constructed in a narrow sense and it was held that the deprivation does not restrict upon the right to move freely which came under Article 19(1)(d). At that time Gopalan case was the leading case in respect of Article 21 along with some other Articles of the Constitution, but post Gopalan case the scenario in respect of scope of Article 21 has been expanded or modified gradually through different decisions of the Apex Court and it was held that interference with the freedom of a person at home or restriction imposed on a person while in jail would require authority of law. Whether the reasonableness of a penal law can be examined with reference to Article 19, was the point in issue after Gopalan’s case in the case of Maneka Gandhi vs. Union of India the Apex court opened up a new dimension and laid down that the procedure cannot be arbitrary, unfair or unreasonable one. Article 21 imposed a restriction upon the state where it prescribed a procedure for depriving a person of his life or personal liberty.  

In the case of Kharak Singh v. state of Uttar Pradesh the supreme court quoted and held that:

By the term life as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by amputation of an armored leg or the pulling out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world.

  1. Right to live with dignity

The right to live with dignity has been recognized in cases of Bandhua Mukti Morcha v Union of India: The Supreme court put the burden of proof on the respondent stating it would treat every case of labor as a case of bonded labor unless proven otherwise by the employer. This is the duty of the state to provide justice and protect the life and live with dignity of every bonded labor. After this the expansion of the scope of Article 21, the public Interest Litigation in respect of children in jail being entitled to special protection, health hazards due to pollution and harmful drugs, housing for beggars, immediate medical aid to injured persons, starvation deaths, the right to know, the right to open trial, inhuman conditions in aftercare home have found place under it.” [3]

  • Right Against sexual Harassment at workplace

The meaning and content of fundamental rights guaranteed in the constitution of India are of sufficient amplitude to encompass all facets of gender equality including prevention of sexual harassment or abuse.

In Vishakha v. State of Rajasthan:  The supreme court has declared sexual harassment of a working woman at her work as amounting to the violation of rights of gender equality and rights to life and liberty which is a clear violation of Article 14, 15 and 21 of the constitution.” [4]

3.  Right Against Rape

Rape has been held to a violation of a person’s fundamental life guaranteed under Art 21. Right to  life right to life right to live with human dignity. Right to life, would, therefore, include all those aspects of life that go on to make life meaningful, complete and worth living.

  • Right to Reputation

Reputation is an important part of one’s life. It is one of the finer graces of human civilization that makes life worth living. Subramanian Swamy v. Union of India, Apex Court held that the reputation of an Individual is a basic element under Article 21 of the constitution necessity. Right to free speech does not giving a right to an individual to defame others.  

  • Right to Livelihood

It is the fundamental right of every citizen under Article 21 of this country to live with human dignity, free from exploitation and practice any profession to support his livelihood. The magnitude and contents of the components of this right would depend upon the extent of the economic development of the country. The Supreme Court has argued in the Olga Tellis v. Bombay Municipal Corp that the right to livelihood is born out of the right to life, as no person can live without the means of living, i.e., the means of livelihood.” [5]

  • Right to shelter

 In Chameli Singh v. State of U.P a bench of three judges of Supreme Court has considered and held that     the right to shelter is a fundamental right available to every citizen and it was read into Article 21 of the constitution of India as encompassing within its ambit, the right to shelter to make the right to life more meaningful.

  • Right Against Honour Killing

A division bench of Allahabad high court, In Surjit Kumar vs. State of U.P took serious note on harassment, in ill-treatment and killing of a person who was a major, for wanting to get married to a person of another caste or community, for bringing dishonor to family since inter caste or inter community marriage was not prohibited in law, the court said that such practice of “honor killing” was a blot on society. The Court, therefore, directed the police to take strong measures, against those who committed such honor Killing.” [6]

  • Right to Medical Care

In Paramananda Katar v. Union of India, the Supreme Court has very specifically clarified that preservation of life is of paramount importance. The Apex Court stated that once life is lost, status quo ante cannot be restored. It was held that it is the professional obligation of all doctors to extent medical aid to the injured immediately to preserve life without legal formalities to be complied with the police.

Indian Judiciary provided excellent elucidation to right to life and personal liberty under Article 21 of the constitution. The Supreme court established certain procedure to implement them.” [7]

Right to Life and Suicide

Section 309 of the Indian Penal Code makes attempted suicide a criminal offence which is punishable with imprisonment and fine. The law states, “Notwithstanding anything contained in section 309 of the IPC, any person who attempts to commit suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under the said code”.

Right to Life and Euthanasia

Euthanasia is the practice of intentionally ending life in order to relieve suffering and pain. It is also called ‘mercy Killing’

Passive Euthanasia, this is where treatment for the terminally ill person is withdrawn i.e., conditions

 Necessary for the continuance of life are withdrawn. Active Euthanasia is where a doctor intentionally intervenes to end someone’s life with the use of lethal substances.

  • Sentence of Death – Rarest of Rare Cases

The issue of abolition of capital punishment was dealt with by the law commission of India. The commission recommended the retention of capital punishment in the present state of the country. The commission held the opinion that having regard to the conditions of India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the diversity of its population and to the paramount need for maintain law and order in the country.

     Right to life is Paramount

Justice RF Nariman observed that “The Health of citizens of India and rights to life is paramount. All Other sentiments be in Religious are subservient to this basic Fundamental Rights,”. Asked the Uttar Pradesh Government to reconsider its decision to allow Kanwar Yatra inside the state with a limited number of pilgrims and asked the government to instead consider a complete ban on the physical movement of Kanwariyas in the state.” [8]

Violation Of Right to Life During Covid – 19

Coronavirus pandemic hit worldwide with no known pandemic in human history. The widespread was never foreseen and its extent is unprecedented and humanity has yet to comprehend its consequences. Life of an individual is of paramount importance and due to the spread of novel Coronavirus people across the world are struggling to save their life and the lives of their loved ones. Once the life is lost; it cannot be restored. We are witnessing worldwide inadequacy of medical science, infrastructure and the efforts to the effected people.

Talking about the present situation, India being a welfare State, is one of the worst affected countries which is struggling hard to overcome the second deadly wave of covid-19. The role of the government is considered to be very crucial for fighting with the second wave of covid-19 as it is the primary duty of the government to secure the welfare of the people and to protect their life. But unfortunately, the government has failed to discharge its duty in providing timely medical facilities. Although an emergency has not yet been declared nationwide, powers related to emergency are being exercised by the central and state government and therefore emergency measures have been initiated.” [9]

Hereinafter are the aspects of Article 21 running parallel to the present pandemic:

  1. Right to Life

Taking into account the situation of covid-19, the Ministry of Home Affairs issued directions to the state governments and authorities to ensure that all the employers make payment of wages to their workers on the due date and the said wages shall under no circumstances be deduced. Further, the wages be made for the period the establishment/Industry/shops are under the closure during the lockdown. It is pertinent to mention that the Hon’ble Supreme Court in

Peoples Union for Democratic Rights vs. Union of India held that non- payment of minimum wages to the workers is a denial of their right to live with basic human dignity and violation of Article 21 of the Constitution. As mentioned earlier that the enforcement of Initiatives is a fight because certain institution in the informal sector is breaching the directions issued by the government. From deducting wages to dismissing a percentage of employees to further delaying payment of wages, a few sectors in the economy are practicing these violations.” [10]

  • Right to Health

In the present circumstances the health and welfare of our nation is at stake which brings forth the Fundamental Right of ‘Right to health’ in the spotlight. From the shortage of testing kits necessary to examine the patients with Covid-19 to the unavailability of adequate Personal Protective Equipment’s essential for the wellbeing of the healthcare workers, the state is unable to provide for both, several reports coming in from countries effected by Covid-19 indicate that the absence of Personal Protective Equipment has caused the spreads of infection among the healthcare workers. The same situation can arise in our country leading to the spread of infection amongst the medical practitioners. Consumer Education & Research Center and others vs. Union of India and others wherein theHon’ble Supreme Court held that “the compelling necessity to work in an industry exposed to health hazards due to indigence to bread-winning for himself and his dependents should not be at the cost of health and vigor of the workman”. Thereby, bestowing Personal Protective Equipment and other necessary safety supplies to the healthcare sector is the obligation of the state governments, ignoring which will be a grave contravention of the Fundamental Rights of the Healthcare workers.

Right of Dead person

The word Person has been derived from the Latin word persona, which means the mask worn by a person. Until the 16th century, this term was used to refer to the role played by a man on stage. It was only after some time this term started to be used in terms of someone having rights and duties. 

This word has now acquired multiple meanings. According to the famous Jurist Lite mana, the essence of a legal personality is its “will”, the bodylines of man being a completely different and unrelated attribute.

Persons in law have two categories, natural and legal. Natural persons are human beings, legal persons, on the other hand, maybe called artificial persons. They are Imaginary persons who have rights and duties in law and in whom law vests personality by way of fiction.

Can Dead bodies be considered legal person?

The personality of a man commences from his birth and ends with his death. It is said that they cease to have any rights as all their duties and interests cease with their death. For determining that a dead person is a legal person or not, the following questions have to be answered.

  1. Does the enforceability of a will indicate that dead are legal persons?
  2. Right of the dead against sexual assault.

Background

In both natural or unnatural deaths, it is the duty of the state to protect the rights of the deceased and prevent crime over the dead body. It is also a requirement that the states/UTs prepare a SOP in consultation with all the stakeholder so that the dignity of the dead is ensured and their rights are protected.

International Framework

Human dignity lies at the core of all international human rights laws. Some of the International covenants and laws that deal specifically with the dignity of the dead are given below:

  1. Article 16(II paragraph) of Geneva Convention 1949 IV.
  2. Article 3(a) of the 1990 Cairo declaration on Human Rights is Islam.
  3. UN Commission on Human Rights in a Resolution adopted in 2005.
  4. The UN’s Inter Agency Standing Committee’s Operational Guidelines on Human Rights and Natural Disasters.
  5. International Humanitarian law Article 130(1) of the 4th Geneva Convention.” [11]

National Framework

Article 21 of the Indian Constitution which guarantees the Right to life, embraces many aspects of a person’s life Including Right to Dignity. By various Judgements of the supreme Court and High Court, this right has been extended to dead persons also.

In the case of Parmanand Katara V. Union of India, 1989 SSC 286 the Supreme Court highlighted the importance of conferring dignity to dead persons.

In the case of S. Sethu Raja V. Chief Secretary, 2007 the Madras High Court directed the Government authorities to bring the dead body from Malaysia, so that burial can take place at home according to traditions and customs.” [11]

Provisions for rights of the dead in India

In India, some rights have been provided by statutes like the Indian Penal Code to the bodies after they die. These are enumerated as under:

Section 297 – The rights of deceased persons include Right against trespass of burial sites, places of funeral rites, etc.

Section 404 – Right against dishonest misappropriation and conversion of property.

Section 499 – Right against defamation.

Section 503 – Right against criminal Intimidation.

Basic Principles for upholding the dignity and protection the rights of the dead.

  1. No discrimination in treatment of the body in any form- To ensure that the dead body is properly preserved and handled irrespective of religion, region, caste, gender, etc.
  2. No physical exploitation – Any form of physical exploitation of the body of the dead violates the basic right of the deceased person.
  3. Decent and timely burial/ cremation – The deceased person has the right to a decent and timely burial/ cremation.
  4. To receive Justice, in case of death due to crime- The dead have the right to receive Justice in cases where death occurs due to crime.
  5. No defamation after death – The deceased person should not be defamed by any kind of statement or visible representation, made or published intending to harm his/her reputation.

Covid – 19 & Rights of Dead

As of 9 May 2021, globally 32,96,841 people have died on account of covid-19 pandemic whereas in India 2,42,398 people have lost their life due to this deadly virus.  Due to this record number of deaths, the process of management of dead bodies while adhering to the covid safety protocol, transportation of dead body and their burial or cremation, etc., has become challenging. The Supreme Court and   various High Court have highlighted the importance of providing decent burial to dead persons amidst this pandemic.

Legal Interpretation

  1. The Karnataka High Court on 27 July 2020, stated that the state government and civic body Bruhat Bengaluru Mahanagara palike are bound to come out with guidelines to ensure dignity of the dead. The court directed the state government of Karnataka to ensure that dead bodies are given a proper burial/cremation. Immediately after this judgement, the state government of Karnataka released the guidelines for management of dead bodies during Covid-19.
  • In the case of Vineet Ruia Vs. The Principal Secretary, Department of Health & Family Welfare, Govt of WB Observed that the right to dignity and fair treatment under Article 21 of the Constitution is not available to a living person but also to his mortal remains after his demise. Disposal of a Human body, whether or not the person dies of Covid-19, whether by cremation or burial, should be done with due respect and solemness.: [12]

CONCLUSION

To conclude, as numerous advances were made in the field of Right to Life, The Hon’ble Supreme Court has significantly widened the scope of this right by including in its ambit all which is essential to live a life with human dignity which include shelter, livelihood, health etc. The effect of covid-19 has called elasticity to the existing fundamental rights thereby bringing forth the prevailing loopholes of the system into light. This pandemic has acted as a magnifying glass, compelling the government to read in-between the lines of the constitution. There is a wide gap between the reality and the existing laws as the state governments suffer from an Implementation failure. On the Other hand, Corpses don’t enjoy the status of legal persons in India. This according to me does make sense. Although bodies of people after they die are given some rights in India. 

CITIATIONS

WEBSITES: –

(Last visited on 10 July, 2021)

(Last Visited on 12 July, 2021)

  • Bandhua Mukhti Morcha Vs Union of India AIR 1984  

                          SCC 802

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(Last Visited on 14 July)

  • Olga Tellis v. Bombay Municipal Corporation 1985 SCC 545

(Last Visited on 15 July)

Author: TARUN KUMAR SHARMA, DOGRA LAW COLLEGE, UNIVERSITY OF JAMMU

Editor: Kanishka VaishSenior Editor, LexLife India.

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