Legal Status and Rights of a Dead Person

As per current scenario in India there is no specific statutory law in India for specifically made for the rights of the dead. There are some judgements,customary laws,partial provisions in other statutes and basic principles for upholding the dignity and protecting the Rights of the Dead Person.

As a dead person is incapable of executing any of his rights or obligations as he/she would have done when alive, the only option to do it is through a valid law. Currently from the last rites as per once religious beliefs to execution of a will all are governed by customary law, but case becomes complicated when person dies as unidentified or intestate. Moreover the problems dealing with right to reputation and organ transplants e.t.c. After a while due to land shortage the old burial sites are destroyed or reused after some years, I will also be inspecting validity of such orders by government. Also I will discuss the alternative stands taken by jurists as to conferring legal status on dead person its pro’s and cons. Consideration on validity of oral will needs more stringent check process.

• What is exact legal status of a dead person? 
• How does a dead person ensure the fullfillment of Will? 
• What law speaks about bodily integrity and privacy of the dead?

Introduction and Overview: 

Law only recognizes two categories of person 

•  Natural Persons 
• Artificial Persons/Juristic Persons  

Dead Person is no longer considered a ‘person’ in the eyes of law. For purpose of Law a dead person ceases to be a ‘person’. Death being inevitable needs to be examined under purview of law. Annoucement of “Death” is made by a practicing Doctor or competent medical practitioner authorized to do so. Once death is certified and cause of death and time of death is determined person is declared officially dead. A death certificate of the deceased needs to be maintained by Muncipal Corporation or local authority as the case may be,to keep a record of deaths within their jurisdiction.

Law takes into consideration certain things: 

• Reputation after death,Final rites as per religion. 
• Organs of His/her body 
• Wealth(inheritance) 
• WILL

Reputation after death and Final Rites: 

Most of us are interested in maintaining reputation even after death. The law does provide for some degree of protection to the reputation of a dead person. Defamation suit can be initiated for loss of reputation of a dead person. This right is in reality not that of the dead person but of his living descendants as they may or may not execute it. 

Posthumously ‘awards’ are conferred to people with bravery which addon to their valor but other questions remain. For instance if a movie of webseries is launched will it affect the reputation the dead. 

In R. Rajagopal and Anr vs State of Tamil Nadu [1994 (6) SCC 632] the Hon. Supreme Court had observed that though every citizen had right to privacy under Article 21 of the Constitution, any information based on public records could be published by the press. This was also observed in case of veerapan’s tamil movie which his wife had challenged the release in Madras HC (M/S.Akshaya Creations v V.Muthulakshmi C.R.P(PD)Nos.3943 and 3944 of 2012)  . 

For the biopic thalaivi the niece of former CM J.Jayalalitha had approached the High Court the appeal was filed in response to a lower court’s reluctance to halt the distribution of film Thalaivi, claiming that the film was not created with her approval and hence may damage Jayalalithaa’s reputation.

Petition was dismissed. Court observed that the information was already available in public domain.

But yet another interesting case linked with J. Jayalalitha was wherein a lady claimed to be her daughter (after death of the former CM). Here Madras HC observed “Even Dead Persons Have Got A Right Of Privacy And Their Souls Should Not Be Disturbed” Also the court said if petition is granted it will not only open a Pandora box but also the coffin of J. Jayalalitha. 

The reputation of dead person flows its way through natural law theory. While very few scholars have touched this topic mostly we have to look forth for the customary law. The custom of treating a corpse with respect and giving it a decent funeral have been a traditional practice. 

Disrespect to a corpse is never agreed by any religion even after wars bodies are cremeated or buried with respect. Most religious laws confer certain customs to be followed after deaths for instance in Hindusim there are 16 sanskaras like vivah sanskar e.t.c ‘antim sanskar’ is referred to as final rites to be performed after death. 

The Abrahamic religions too have a burial system for their own individual religions and they have to be performed in right described manner. 

The United Nations Inter Agency Standing Committee’s Operational Guidelines on Human Rights and Natural Disasters recommend that appropriate measures should be taken ‘to facilitate the return of remains to the next of kin. Such measures should possibly allow for the recovery of human remains for future identification and reburial if required. 

Article 130(1) of the fourth Geneva Convention in the International humanitarian law provides that ‘States’ should ensure that ‘graves are respected, properly maintained, and marked in such a way that they can always be recognized’

In Parmanand Katara v. Union of India, 1989 SCC (4)286, the Hon. Supreme Court stated the importance of conferring dignity to dead persons. Again, it was reiterated by Apex Court and highlighted in the case of Ashray Adhikar Abhiyan v. Union of India, 2002 that “dignity of the dead must be maintained and respected”. Further, it extended the right to the homeless deceased person to have a decent cremation according to their religious customs to which they belongs to, it also established a corresponding duty on the “State” to ensure that decent cremation is served to the dead person.

In the case of P. Rathinam v. Union of India 1994 SCC (3) 394 , the ambit of Article 21 of Indian Constitution was widened to include the dignity of a person. It emphasized that the right to life means a meaningful life and not merely animal existence. Further, through judicial developments this right to dignity was also expanded to a dead person Indian law recognizes Right against defamation under Section 499 and Right against criminal intimidation under Section 503 of IPC. 

If any deadbody remains unidentified after stipulated time and no material evidence to make out his/her religion then in India their final rites are done as per Hindu tradition.

Privacy of a corpse 

 Court in Ramji Singh and Mujeeb Bhai Vs. State of U.P. & Ors had observed that right to live with dignity for a ‘person’ under Article 21 also extends to his dead body. The provision for deceased persons include Right against trespass of burial sites, and for places of funeral rites, etc. under Section 297 of IPC. Although some part of sec 377 has been struck down still the term ‘unatural offences’ and the operative part still remains in force for animals,beastility and corpse. 

The condition in medical terms is called as necrophilia. Necrophilia is a bizarre act in which perpetrators indulges in sexual activity with a corpse. Necrophilia was observed in Nithari killings wherein several girls were killed and their corpses were sexually abused.

Organs of His/her body:

The Transplantation of Human Organs and Tissues Act, 1994 is the statute which regulates the removal, transplantation and storage of tissues and human organs for therapeutic purposes and for preventing commercial dealings of human organs and tissues as well as matters connected therewith or incidental thereto. 

Under THOTA a deceased person gets right to protect and preserve the human organs or tissue or both of the dead body from being harvested without his/ her consent whilst being alive or the consent of near relatives after person’s death. 

THOTA merely doesn’t regulate a dead persons transplant but alive persons aswell who can donate or transplant organs to a matching donor. Brain stem death is considered legal death and when multiple organs if are fit can be considered for transplant and after cardiac arrest its the tissues which are transplanted. The definition of ‘near relative’ now includes: father, mother, son, daughter, brother, sister, spouse, grandparents and grandchildren. 

Government now while a person is alive has made a facility regarding Pledging for Donation, this concept cannot be defined under ‘will’ because it’s a public record and will reading is done after the death. 

This is rather a voluntary approach for achieveing a greater good for the society. It is done through a ‘pledge registry’. These are known as explicit consent and presumed consent . Wherein explicit consent means consent is given specifically and presumed consent is wherein ‘near relatives’ give consent.

ORGAN TRAFFICKING OF THE DEAD: If organs are removed without the consent of ‘near relatives’ or if the person who is deceased has not been identified under the pledge registry. Without such a case it would amount to organ theft or organ trafficking. Even person not authorised by law under THOTA for removal of organs can be considered to have committed an offence. The law takes into consideration all such incidents and hence a penalty and punishment has been prescribed for the wrongdoer under sec 18 of THOTA and with amendment the penalty has been raised. Further commercial dealings of organs11 is also prohibited under THOTA.

Wealth(inheritance): 

In the oldest democracy of the world USA there is a concept of ‘Estate Tax’ which is referred to as ‘Death Tax’ because it is a federal tax on the transfer of the estate of a person who dies. Wealth consists of both movable and immovable property providing some benefits. 

Even liabilities of a dead person are transferred to the person who remains as a ‘surety’ Inheritance is governed by legislations in family law. The person’s wealth is subjected to the practicing religion of which he or she belongs to. 

For instance Hindu law has different calculations regarding passing on wealth to legal heirs then that of Islamic law or jewish laws. But that part deals more with legal heir and only religious denomination of the dead person is taken into the consideration. Only the Interest Theory of rights, is a theory which recognizes that a person’s ‘interests’ can survive death and that these interests may be recognized by the law under certain circumstances

The interest theory of rights was propounded by Bentham who argued that a person has a distinctive human right when others have duties which protect one of that person's interests. So even if not directly there is a substantial link between protecting the rights of the dead.

WILL 

There are various concepts which are taken into consideration after the death of a person and WILL and codicil are most important one. A codicil means a legal document that dictates any sort of modifications or amendments to your last Will and Testament. 

WILL can be conditional or plain or even an Oral will or even registered or unregistered. A testament or will is a legal document by which a person, the testator, expresses their wishes as to how their wealth is to be distributed after death, and names one or more persons, the executor, to manage the estate until its final distribution formally it is done by a ‘WILL DEED’ WILL can be anything which is possible and within the capacity of executors or is reasonable and not prohibited by law.

 A trust can even be formed under Indian Trust Act,1882 by mere expression of Will. The execution of will can be done through court if its linked to distribution of property. A will can also be challenged on various grounds even a reasonable possibility of being forged or fabricated. The both Hindu succession Act and Indian Sucession Act have provision for execution of a will. Now lets examine the scope of ‘intestacy’ i.e condition wherein a person dies without a WILL. If a person dies without a will the respective religious legislation for succession will apply.

For Hindus however, under Hindu Succession Act, 1956, section 30 a Hindu may dispose of by Will or other testamentary disposition, any property, which is capable of being disposed of by him/her, in accordance with the provisions of the Indian Succession Act, 1925 or any other law for the time being in force applicable to Hindus.

There is no restriction per say, under the Hindu Succession Act, 1956 or under the Indian Succession Act, 1925, on the person or persons to whom a Hindu may bequeath his/her self acquired and self-owned properties over which he or she has full disposing power. So even if in state of intestacy it might so happen that legal heir may get the share but through WILL the wealth can be donated anywhere to trust or non-hindu or anyone else. 

Whereas in Islam there is a proportion of asset distribution which is fixed and hence very minimum interference is allowed. If a Muslim person desires to make a ‘Will’ of his property, he or she is allowed to do so only to the extent of one-third of their bequeathable property. The sum of one-third is calculated after the expenses of their debts and funeral etc. 

Any bequest exceeding the limit of one-third Will not come into effect unless the heirs of the legator give their consent to it because the it will go contradictory to customary law. In case the legal heirs do not give their consent, then the bequest under the ‘Will’ only will remain valid to the extent of one-third only and the remaining two-thirds Will be transferred through intestate succession. 

A Muslim person who does not have any heir may bequest his property to anyone and in whatsoever amount he may desire to give. But if a Muslim person bequest their property to a non-heir or a stranger, then the consent of the current legal heirs is of utmost significance if the property exceeds the one-third of his total property. There is one classic example in India wherein a person(muslim) died intestate but his legal heir did not get the share that is of Dina Wadia. 

As per muslim law she was entitled to her father’s property but many legal aspects came in between for example she married a parsi and her father’s property was subjected to The Enemy Property Act, 1968. I won’t go in technical aspects or political correctness of the matter but wanted to share this exceptional incidence herein. The case is still pending in Bombay High Court.

Shortcomings in the Law with respect to dignity and rights of the dead. 

There is no law specifically to punish cannibalism. The provisions in IPC fall short to define the condition of cannibalism wherein person kills and eats the flesh of dead body. Sometimes they don’t kill but directly eat the flesh through mortuary. Such pyscopathic behaviour needs to be punished more brutally. Although Courts in multiple cases during Covid 19(it was a situation different from normal) asked to provide a decent funeral most authorities failed to provide one. 

 National Human Rights Commission has written multiple letters regarding current lacunae and to enact specific legislation and has given advisory to uphold dignity of dead. But because its merely an ‘advisory’ it is not binding. The dignity of the dead is part of religious rituals is what most people understand. However, upholding the dignity of the dead needs to extends way beyond just religious or cultural rituals. Because in general societal norm family do respect their loved one and have decent funeral rites. 

Problem arises when state has to handle it or while situation arises as bad as pandemic. If we examine under jurisprudential aspect even morality plays an important role here because forging a will is also a disrespect to a dead person. Morality also plays an important role mostly in case of oral wills, for instance if any person has stated something on deathbed with respect to his/her property and person doesn’t notify the executor and legal heir then such a will remains unexecuted and there is nothing in law which will compel the near person to notify others about such a will. 

Reuse of cemetery plots is also an issue, in different states different provisions operate for instance in Jamshedpur Christian cemeteries reuse the same grave space after 20 years seeing it as a pragmatic option in scarcity of land. Now there can be two sets of arguments in this one wherein we may think that deceased persons memory may fade overtime secondly its just mortal remains of a person and issue of land scarcity needs to be addressed. While this is true but there is no specific reasoning over what and how many number of years need to pass to reuse the cemetery. 

In Thane recently Jewish cemetery major part was bull-dozed for widening but it was an old cemetery remarking significance of this miniscule community living in India since ages. If such cemetery are bull dozed then its diminishes footprint of their history over here. Great care is taken of Cememtry of people died in World war 2 e.t.c 

Even India must take a way out as to what exactly can be done to keep a balance in this regard. The issue of Privacy does pertain its not just about name or protecting the honor and dignity of the dead. It even should include recording of video visuals or taking photograph of the dead person. It might be the case that ‘near relatives’ of that person might not be comfortable with any sort of reporting related to their kin. 

If we go deep into moral aspects even usage of names of dead person especially freedom fighters and military personnel for political purposes or advertising campaign also should be restrictive. One may follow or describe their ideology or thoughts but equating their valor thoughts and misusing their names for politics by twisting the facts is what law must look into as of now it’s a grey area of law. While there is no ‘reasonable restriction’ under Article 19(2) to use their names but using it for political benefit of person not even connected with that political party is matter of debate,morality and introspection. 

So this was all about the Dignity and Rights or Dead