KOCHI: The Kerala High Court on Thursday directed the state government to strictly follow the guidelines issued for performing the last rites of COVID-19 patients.
A division bench comprising Chief Justice S Manikumar and Justice Shaji P Chaly issued the order while disposing of the petition filed by Muhammed Haleem KK of Malappuram seeking a directive to hand over the body of those who die of COVID-19 to their relatives to perform the last rites, adhering to the precautions.
The bench observed that on a reading of the guidelines of the central and the state governments, it was clear that specific instructions are given with respect to the performance of the last rights of a deceased COVID-19 patient. It also shows that clear prohibitions are created thereunder from touching the body and washing. Therefore, the court cannot substitute the protocol and permit either the relatives or issue directions to the staff of the hospital or any other department to wash the dead bodies, said the court.
The guidelines are issued in the larger interest of the public and to ensure that the COVID-19 pandemic is not being spread in a manner that affects the public and with the objective to contain the disease. If a person touches the body of a deceased COVID-19 patient for the purpose of washing, there is a likelihood of him being infected with the virus and thereby spreading the disease to others, it said.
The individual interests based on fundamental rights have to give way to the interests of the community at large, in view of the situation prevailing due to the pandemic. This also means that the government has a duty to ensure that the activities of the public are regulated and managed to the common advantage of the people as a whole, said the court.
"It may be correct that in the process, there is a chance of the rights and privileges of individuals or a group guaranteed under the Constitution of India being affected, but that is unavoidable in an an extraordinary situation like the one at hand because the state has to protect the life, liberty, interests and well-being of the community as such in preference to an individual. This is more so in a welfare state like India, where the duty of the state is to look after the welfare of the community as such rather than any individual or vested interests, especially in a pandemic situation like the present one," the court observed.
"Hence, the rights of an individual, however, high and precious at times have to be sacrificed to serve the best interest of the citizens at large and pave way for convenience, rather than making any pedantic and narrow approach to the issue," added the court.
The petitioner submitted that he and his relatives were not allowed to see the face of his 80-year-old mother who died of COVID-19, before her burial. According to him, there was confusion among the common man about the cremation, burial, last rites of deceased COVID-19 patients. Once a COVID-19 positive person dies, the health department takes away the body to the cremation/burial grounds where not a single family member is allowed to enter. The family members of a person who dies of COVID-19 are thus deprived of the right to perform the last rites of the deceased.