Rajasthan High Court: In a civil writ petition filed by the petitioners, a group of individuals known as the Kanchan Patil (Mirasi) Samaj, against the prohibition from using the kabaristan (graveyard) for the performance of burial rites on account of the distinct identity of being associated with Islam yet retaining certain customary practices under Jasnathi Jat community, a Division Bench of Dr. Pushpendra Singh Bhati and Bipin Gupta, JJ., held that the right to dignity under Article 21 extends beyond life and includes a dignified burial or cremation for mortal remains. The court directed the State to file an affidavit outlining a common policy for post-death rituals for all sections of society.
Background
The petitioner is a group of individuals known as the Kanchan Patil (Mirasi) Samaj, residing predominantly in the districts of Jodhpur, Jaisalmer, Barmer, Jalore, and Sirohi of Western Rajasthan with their origins in the Jasnathi Jat community that embraced Sufi Islam in the 18th century but retained its traditional customs for ceremonies like birth, marriage, and death. Because of this distinct identity, members of the community were being prevented from using the kabaristan (graveyard) for burial rites. Aggrieved, the petitioner filed the present petition.
Analysis and Decision
The Court noted that the present dispute is an example of how deeply rooted discrimination continues to be in society and the social reality falls short of the constitutional vision. The Court noted that,
“The Preamble to the Constitution of India solemnly resolves to secure to all citizens justice, liberty, equality and fraternity. The concept of fraternity is not a mere ornamentation of words, but a foundational value which assures both the dignity of the individual and the unity and integrity of the Nation. It obliges society to rise above parochial barriers and to treat every person as part of a larger human brotherhood.”
The Court noted that Section 275 of the Rajasthan Municipalities Act, 2009 and Section 104 of the Rajasthan Panchayati Raj Act, 1994 read together, unmistakably underline the legislative intent that the management of cremation and burial grounds is to be exercised by public authorities in the collective interest of the community, and not to be appropriated to the exclusive control of any private or sectarian group.
The denial of access to the cremation/burial ground to the petitioner offended guarantees of equality, non-discrimination and freedom of practice.
Article 14
The Court observed that when one group is arbitrarily excluded from performing last rites in a common land meant for such purpose, while others are permitted, the principle of equal protection is violated. The State, as trustee of such land, cannot allow selective treatment or exclusion based on social identity.
Article 15
The Court noted that the exclusion of the petitioner community from access to the cremation ground is nothing, but a continuation of social discrimination based on social identity. Such exclusion, when attached to the most solemn act of a dignified farewell in death, amounts to perpetuating inequalities which the Constitution forbids.
Article 25
The performance of final rites is an intrinsic and inseparable part of right to freely practice one’s faith. Denial of space to perform these rites amounts to direct interference with this fundamental freedom. The Constitution does not permit one section of society to impose its will on another in matters so personal and sacred.
The Court pointed out that in Parmanand Katara (Pt.) v. Union of India, (1995) 3 SCC 248, and Ashray Adhikar Abhiyan v. Union of India, 2002 (2) SCC 27, the Supreme Court had observed that right to dignified and fair treatment is available even after the death and even an unclaimed homeless deceased is entitled to a dignified burial according to their religious faith.
The Court pointed out that these constitutional freedoms find reinforcement in international covenants namely the Universal Declaration of Human Rights, 1948, the Geneva Conventions of 1949 and International Covenant on Civil and Political Rights, 1996, to which India is a signatory. The European Court of Human Rights has similarly held that denial of dignified last rites violates the right to private and family life, thereby inflicting avoidable suffering on the bereaved.
The Court noted that by judgment in Vishaka v. State of Rajasthan, (1997) 6 SCC 241, the Supreme Court clarified that international instruments can be read into the interpretation of fundamental rights, so long as they are not inconsistent with domestic law and therefore, the denial of access to burial/cremation grounds is not merely a matter of local land management; it constitutes a grave violation of constitutional morality and a breach of India’s international commitments to uphold the dignity of every human being, even in death.
The Court pointed out that the National Human Rights Commission of India, in its Advisory for Upholding the Dignity and Protecting the Rights of the Dead (2021), has underlined that the right to dignity under Article 21 extends even after death.
The Court noted through P. Muthusamy v. B. Vennila, 2022 SCC OnLine Mad 8767, and B. Kalaiselvi v. District Collector, Kallakurichi, W.P. No. 9229 of 2021, that dignity in death cannot be compromised by social exclusion, and that burial grounds are ultimately public resources subject to regulation by the State in the interest of equality and fraternity.
In light of the afore-mentioned provisions and precedents the Court observed that,
“public lands earmarked for cremation or burial cannot be segregated or monopolized by any community. Any such practice of exclusion or reservation of common land for the benefit of a particular caste, creed, or community is antithetical to the constitutional vision of equality, fraternity, and dignity.”
The discrimination proscribed under the Constitution cannot be permitted to exist in any form and certainly cannot be allowed to extend beyond death. The dignity of the human person is not extinguished with the last breath but continues in the performance of final rites.
However, the Court considered that,
“public land is a scarce resource, meant to serve multiple social purposes including the establishment of schools, hospitals, and other essential public utilities. If burial and cremation grounds are indiscriminately carved out from every available parcel of government land on the basis of caste or community claims, the consequence will be an unsustainable depletion of land available for such vital civic infrastructure. The State, therefore, in formulating a uniform policy, must balance the obligation of ensuring dignified last rites for every citizen with the equally compelling need of reserving sufficient land for public welfare facilities, so that the living and the deceased alike are accorded dignity.”
The bifurcations based on caste and religion have created havoc, as some may feel entitled over such places while others may feel deprived. The performance of post-death rituals ought to be brought into the realm of a comprehensive State/Union policy to enable dignified performance of the last rites which remain socially essential even after death, as the body is still in existence.
The court directed the State to file a response on the organization and regulation of post-death rituals for all sections of society, and to consider a common policy to address the situation without causing social disharmony.
[Kanchan Patil (Mirasi) Samaj v. State of Rajasthan, D.B. Civil Writ Petition No. 8260/2021, decided on 22-08-2025]
Advocates who appeared in this case:
For the Petitioners: Moti Singh, Advocate
For the Respondent: B.L. Bhati, AAG with Sandeep Soni, B.P. Bohra, Sr. CGSC with Vaibhav Bhansali & Jitesh Suthar, Usman Ghani
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