J&K HC | Kins of persons dying of Covid-19 can view face and perform last rites of deceased; HC declines to handover dead bodies to the family

Jammu and Kashmir High Court: The Division Bench of Pankaj Mithal, CJ., and Vinod Chatterji Koul, J., warned the government of J&K to be prepared for the third wave. The Bench stated,

“It is to be borne in mind that the larger public interest always prevails over personal rights and the traditions and customs have to yield to the national interest especially in these unprecedented times. Accordingly, we dispose of the aforesaid application expressing hope that the authorities would not cause any harassment to the next of kins of any person dying due to Covid-19 in viewing the face of the deceased and in allowing them to perform the last rites in the manner laid down.”

Guidelines for Dead Body Management

In the instant PIL, various Covid-19 related issues had been raised before the Court. The counsel for one petitioner, Mr. Dinesh Singh Chauhan, prayed that as no post-mortem or autopsy is necessary on account of death due to Covid-19, the dead body should be handed over to the next of kins of the deceased, the face of the deceased be allowed to be seen by the relatives and they be permitted to perform rituals such as sprinkling of holy water etc before cremation. The Government of India, Ministry of Health and Family Welfare had issued Covid-19 Guidelines on dead body management. The said guidelines inter alia provides for standard precautions to be followed by health care workers while handling dead bodies of Covid patients; the manner of removal of the dead body from the isolation centre; handling of the dead body in Mortuary; transportation and cremation. In other words, according to the guidelines, the dead body has to be carried to the cremation/ burial ground in a secured bag by the authorities for the performance of the last rites which shall ordinarily be in the presence of the relatives. We are informed that a maximum of 20 relatives are permitted. The guidelines also provides for viewing of the face of the deceased by the relatives and performing of rituals except for touching of the body. In view of the above guidelines and the permission accorded to view the face of the dead body by unzipping the bag and to perform last rites and rituals without touching the body.

Considering the abovementioned guidelines, the Bench opined that the religious sentiments of the family members had been sufficiently taken care of by the Government. The Ministry of Health and Family Welfare had framed the aforesaid guidelines in consultation with the experts dealing with Covid-19 pandemic and, as such, if the guidelines do not permit handing over of the dead body specifically to the next of the kins and simply allow them to participate in the cremation/ burial and to perform the last rites that was more than sufficient otherwise it would be difficult to contain the spread of the disease.

Other Issues Addressed by the Court

It was submitted before the Court by the government that the department of Health and Medical Education had accorded sanction to the establishment of two 500 bed temporary Covid Hospitals. In addition to it, 1366 posts of different categories had been created as per details enclosed so as to make these two hospitals fully operational. The government had issued directions, inter alia, putting sealing on gatherings especially in marriage functions to the extent of 25 only to continue; to make Covid testing more targeted and focussed in areas with high positivity and upon the unvaccinated population; for providing Corona Kits to all Covid positive patients; to open 5 to 10 bed Covid care centre in each Panchayat with all basic facilities; not to deny any patient admission to a hospital or treatment facility on the ground that they do not have a Covid positive test report; Asha and Anganwari workers had been directed to be trained and empowered to assist in covid migration efforts and to ensure only 50% attendance in Government offices.

In regard to oxygen for the Covid-19 patients, the Administration had ensured adequate supply of oxygen 24×7 to all healthcare institutions. It was also highlighted before the Court that there were dedicated Covid Hospitals for patients who had been clinically assigned severe; dedicated Covid Health Centres for patients clinically assigned as moderate; and Covid Care Centres for patients clinically assigned as mild.

In the backdrop of above, the Bench ordered that in case the applicants feel that the facilities provided by government are inadequate or that doctors or the other medical staff is not available, they can bring these facts to the notice of the Advocate General through Ms. Monika Kohli, Amicus Curiae who would take up the matter with the State Government and apprise the Court about the actual position. Regarding the denial by the government to establish liquid oxygen plant in the Government Medical College and allied hospitals, stating that there was no shortage of oxygen supply; the Bench stated that,

“There may not be any shortage of oxygen presently but for future to combat the anticipated third wave of Covid-19, it would be appropriate if the Government consider establishing of oxygen generation plants in each of the Government Medical Colleges or the allied hospitals. This would be beneficial for the medical world for all times to come in extending medical treatment to all categories of patients.”

The Bench urged the Government to prepare itself in advance to face the third wave, and for that purpose care should be taken to vaccinate each and every citizen at the earliest. The Government was also asked to ensure establishment of oxygen generation plants, and that the temporary arrangements made so far shall not be completely dismantled and be kept in readiness for future. [Suo Motu v. UT of J&K, WP (PIL) No. 5 of 2020, Order dated 03-06-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

Amicus Curiae: Adv. Monika Kohli

For the Petitioner: Adv. Aditya Gupta, Adv. Ashok Sharma, Adv. Mubeen Khan, Adv.  Zeeshan Hyder, Adv. D. C. Chouhan

For UT of J&K: AG D. C. Raina, AAG Aseem Sawhney and GA Sajad Ashraf

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