No Absolute Right To Choose Place Of Burial; State Has Duty To Provide All Religious Communities Places For Last Rites: Justice SC Sharma

Today, the Supreme Court delivered a split verdict on the plea of a Christian man from Chhattisgarh to bury the dead body of his father, a pastor, either in the burial ground of their native village Chindwara or in their private agricultural land.

While Justice B.V. Nagarathna allowed the appellant to bury his father in his private agricultural property, Justice Satish Chandra Sharma held that the burial could be held only at the area designated for Christians, which is at Karkapal village (about 20-25 kilometres away from the appellant's native place).

Due to the peculiar facts and circumstances of the case especially since the body has been lying in the mortuary since January 7 and giving utmost importance to the right to a decent burial, the judges refrained from making a reference to a third bench. Despite their disagreement, the judges passed directions based on the consensus that the Appellant shall be allowed to bury his father in village Karkapal with adequate logistic support and police protection.

Right to choose 'exact' place of burial not unqualified 

Justice Sharma's opinion, which runs into 18 pages, only addressed the issue in the context of: whether the fundamental right to conduct last rites as per one's specific religion or could extend to include the place where such ceremonies ought to be scheduled.

Answering this question in negative, he referred to Rule 8(digging of graves) of the Chhattisgarh Gram Panchayat (Regulating Places for Disposal of Dead Bodies, Carcasses and Other Offensive Matter) Rules, 1999 as per which graves cannot be arbitrarily constructed. They must be established in areas identified by the Gram Panchayat.

He observed:

"A perusal of the CG Rules would reveal that graves cannot be arbitrarily constructed; and must be established in designated areas identified by the Gram Panchayat. The rationale behind the same appears to be extremely logical – the designation of an identified areas serves a salutary purpose of ensuring a systemised procedure of conducting last rites whilst paying due deference to the surrounding sensitivities but also, importantly encompasses a public-health angle. The earmarking of designated areas for every community in every village is an evolutionary process that is not perfect and slow-moving, however, it seeks to delicately handle aspects of human life, and beyond which must receive adequate judicial attention."

Justice Sharma further averred:

"I am unable to appreciate the need to exercise of our equitable jurisdiction under Article 142 of the Constitution of India to overcome the prohibition encapsulated under Rule 8 of the CG Rules; and permit the Appellant to bury the remains of the Deceased on his private land, more-so in light of the fact that a designated burial ground is present within the vicinity i.e., merely 20-25KM away in village Karkapal."