The Kerala High Court Bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly refused to issue any direction to the State Government or the Union Government to overlook its Guidelines (COVID Protocol) and to follow the guidelines of the World Health Organization.
The verdict came on November 19, after the Public Interest Litigations (PIL) filed by members of the Muslim community, seeking direction to the respondents (State and its officials and the Union of India) regarding the management of the dead body of Coronavirus infected patients.
The Court said," Exercising the power under Article 226 of the Constitution of India, this Court is not expected to overturn the guidelines or to make additions to the guidelines without taking note of the exercise already undertaken by the Union Government before issuing the guidelines for the management of the dead body of COVID – 19 patients."
The Court further observed,
"In a welfare State like India, where the duty of the State to look after the welfare of the community as such is more predominant than any individual or vested interests, especially in a pandemic situation like the present one. Said so, we have no second thoughts to say that the rights of an individual, however, high and precious at times has to be sacrificed to serve the best interest of the citizens at large and pave the way for convenience, rather than making any pedantic and narrow approach to the issue."
Taking into account all the aspects, the Court said,
"We do not think, we need to issue any direction to the State Government or the Union Government to overlook the directions contained in the guidelines as above and to follow the guidelines of the World Health Organization."
Therefore, the writ petitions were disposed of directing the State Government "to strictly follow the guidelines issued by the Union of India and the State Government in the management of the dead bodies, and to make necessary arrangements for the performance of the last rights in accordance with the relevant guidelines".
According to Islamic tradition, the burial of a deceased person is a collective obligation (farḍ kifāyah) by the Muslim community. This obligation consists of ghusl, means washing of dead bodies, ekafan, or shrouding the body with pieces of cloth and finally salat al-janazah, a funeral prayer.
Cremation of dead bodies is prohibited according to Islamic Law. It is considered 'haram' or an unclean practice. Moreover, Cremation is considered an unforgivable sin.