Coronavirus: Supreme Court refuses to consider plea on burial of COVID-19 victims

The Supreme Court on Monday refused to consider a plea against the burial of the bodies of those who died of COVID-19 at three cemeteries of Mumbai's Bandra area, saying the Bombay High Court should decide it finally within a period of two weeks.

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A bench of Justices R F Nariman and Indira Banerjee said the High Court, which was already hearing the matter, should consider the issue.

The court asked the petitioner Pradeep Gandhy to press for orders before the High Court.

The petitioner challenged the validity of the Bombay High Court's interim order of April 27, refusing to stay burial of such deceased at Ward Konkani Muslim Cemetery no. 80, Khoja Sunnat Jamat Kabrastan Bandra West and KhojaIsna Ashari Jammat Kabrastan Bandra West.

The petitioner was apprehensive of a "potential catastrophe" that may befall upon the residents living in the densely-populated surrounding area over there.

"In the absence of any interim protection, the petitioners’ writ petition would be infructuous as the burial process will continue and irreversible damage would be caused to the neighbouring area if the COVID-19 virus spreads due to the infected buried bodies," his plea claimed.

He also submitted that there is no study or research to say with certainty that the infection would not spread from the buried infected bodies through the soil and underground water to the neighbouring areas.

"Even though there may be no scientific basis to the contrary, it is precautionary in nature and imperative to be “safe rather than sorry” in extraordinary times such as the present situation where there is no cure to the disease," he contended.

The petitioner claimed the state government had originally issued a circular on March 30, directing that all COVID-19 infected deceased should be cremated and not buried, to avoid the risk of spreading of infection. However, due to undisclosed reasons, it modified this circular, and issued a fresh on April 9, 2020, permitting burial to take place in 20 notified cemeteries.

He submitted that the present unprecedented health situation ought to take precedence over the religious rights of the deceased’s family members seeking to bury the deceased at the subject cemeteries.

In the context of shifting of graves of Muslims vis a vis their right to religion under Article 25 and 26 of the Constitution, this court has consistently reiterated the fact that such right must be subject to public order and health of the larger community, the petitioner said.

He also pointed out that across the world, a different government has advised on cremating the body of deceased who have died due to COVID-19 infection.

Notably, Muslim scholars' group Jamiat Ulama-I-Hind has filed a plea to oppose the petition, saying the apprehension that burial of such persons would risk the spread of infection in the vicinity was "unfounded".