3 Jan 2010

Do dead people have rights?

In a recently reported interesting decision the High Court of Allahabad has enunciated the legal rights of dead persons. In a writ petition filed before the High Court drawing its attention to the appaling condition in a State Government mortuary the High Court examined this jurisprudential perspective of the rights of dead persons. The backdrop for testing this intriguing question was noted by the High Court as under;
The Supreme Court has interpreted Art.21 of the Constitution of India, guarantying protection of life and personal liberty to include right to travel abroad; right to privacy; right against solitary confinement; right to legal aid; right to speedy trial; right against handcuffing; right against delayed execution; right against custodial violence; right against public handing; right to health; right for doctor's assistance; right to shelter; right to development; right of shelter; right to healthy environment; right to live with human dignity apart from other rights as fundamental right included in it to give full meaning of right to life. These rights are inherent in the persons guaranteed to by the Constitution of India included in the right to life and personal liberty of a person, which cannot be denied except in accordance with the procedure established by law. The definition clause in Art.366 of the Constitution of India does not define a person. Section 3 (42) of the General Clauses Act defines a person to include any company or association or body of individuals, whether incorporated or not. Such a person would be a legal entity that is recognised by law as subject of rights and duties. The Indian Penal Code defines a person in Section 11 to include any company or association or body of persons whether incorporated or not.A person defined in Tomlins' Law Dictionary as man or woman; also the state or condition, whereby one man differs from another. A person in law may be either natural or artificial. Natural person are such as the God of nature has formed us; an artificial are such as are created and divided by human laws for the purposes of society and government, which are called corporations or bodies politic. Natural person means and refers to living human being including a man, woman or child as individuals of human race. The reference to a statutory provisions of the word person speaking artificially excludes firm, company, partnership, society, joined stock company or association, with various manners to describe them and their rights and liabilities. The expression person, however, cannot be detached from its context. But does it include a person who has died leaving his body in the physical form to be protected by the kith or kin, friends, society or the State, if no one else can be found?.

On these observations, the High Court declared the law as under;

The law has not so far defined a person to include a dead person. It, however, has some rights, which cannot be detached from it, even if the body is denuded of the life, which together forms a human being. The Indian Succession Act, 1923 provides for execution of the will of a person, after he has died. A person also has a right to protection of his dead body, to be mutilated, wasted or its organs to be taken out, except by the consent of the person, when he was alive, or on the consent of his kith and kin or the State if body is unclaimed, under the Transplantation of Human Organs Act, 1994. The word person may not be construed narrowly so as to exclude the dead body of a human being, who was the person, when alive, which is not claimed and which is required to be cremated or buried with dignity in accordance with the religious beliefs of the person, if such beliefs can be found by establishing his identity. The State is obliged in law to maintain sanitation to remove the body, which becomes dangerous, for the safety of the other living being for its adequate disposal. An unclaimed dead body has to be claimed by the State both for the purposes of investigation of the crime, if it was committed on the human being, who did not die naturally for scientific investigation or for research and medical education. The State is obliged in law both under its powers as a welfare state, and to protect the rights of such person in its extended meaning under Art.21 of the Constitution of India for disposal of a dead body for a decent and dignified cremation/ burial in accordance with the religion beliefs the man kept or professed.
We thus find that the word and expression 'person' in Art.21, would include a dead person in a limited sense and that his rights to his life which includes his right to live with human dignity, to have an extended meaning to treat his dead body with respect, which he would have deserved, had he been alive subject to his tradition, culture and the religion, which he professed. The State must respect a dead person by allowing the body of person to be treated with dignity and unless it is required for the purposes of establishing a crime to ascertain the cause of death and be subjected to postmortem or for any scientific investigation, medical education or to save the life of another person in accordance with law, the preservation of the dead body and its disposal in accordance with human dignity.

No comments: