The Madras High Court held that the right to take part in the funeral rites of a parent, spouse, or child is encompassed within the scope of the fundamental right guaranteed under Article 25 of the Constitution.

The Court disposed of a petition of an individual indicted under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) seeking interim bail to attend their father's funeral.

The Court noted that the right under Article 25 is not absolute and will be upheld by the court based on the particular facts unless exceptional circumstances warrant denial.

The Bench of Justice G. R. Swaminathan observed, “right to participate in the funeral ceremony of the parent/spouse/child will fall within the sweep of the right under Article 25. Of course, this cannot be an absolute right…Unless there are exceptional circumstances, this right will not be denied by the Court”.

Advocate S. S. Sundarapandian appeared for the Petitioner and Government Counsel P. Kottaichamy appeared for the State.

The Petitioner, arrested and remanded to judicial custody on June 13, 2023, for offences under the NDPS Act sought interim bail to attend their father's funeral, who passed away on February 10, 2024. Urged by the urgency, the Administrative Judge directed a special sitting to address the petition. The petitioner cited a previous order from February 4, 2024, where interim bail was granted in a similar circumstance, but the Court was not convinced by this argument.

The Court noted the argument made by the State that bail in cases involving commercial quantities of narcotics should adhere to the criteria outlined in Section 37 of the NDPS Act, 1985. According to Section 37(1)(b)(ii), the Court must be satisfied that there should be reasonable grounds to believe the accused is not guilty of the offence and is unlikely to commit any offence while on bail. This provision applies specifically to offences involving Sections 19, 23, 27(A), or commercial quantity. The Court noted that since the petitioner was allegedly found in possession of 24 KG of Ganja, considered a commercial quantity, Section 37(1)(b)(ii) of the NDPS Act would apply in this case.

The Bench emphasized that the restriction outlined in Section 37 of the NDPS Act should only be considered if the State opposes the application for bail, not otherwise. In this case, the Bench noted that the State explicitly opposed the Petitioner's bail application, citing the petitioner's involvement in two previous cases. Consequently, the Court cannot determine that the petitioner was unlikely to commit any offence while on bail.

Section 37 of the NDPS Act applies not only for grant of bail but also for grant of interim bail. In other words, even while granting interim bail, the Court concerned will have to be mindful of the restrictions set out under Section 37 of the NDPS Act”, the Bench noted. Consequently, the Court rejected the petitioner's request for interim bail.

However, the Court observed, “though I decline the petitioner's request for grant of interim bail, I have to be mindful of the petitioner's fundamental rights. His father had passed away. This fact is not denied by the respondent. As a son, the petitioner will have to participate in the final rites of his father”. The Bench emphasized that even deceased individuals possess certain rights, particularly pertaining to dignified cremation or burial, which involves the participation of close relatives. The petitioner, being a Hindu, has religious obligations such as offering 'Pinda' and lighting the pyre as the eldest son. These religious practices are significant and must be respected by the court. Although bail cannot be granted, the Court issued directions using its inherent power under Section 482 of the Code of Criminal Procedure.

The Court referred to the case of Anandhi Simon v State of Tamil Nadu [2021 (3) MLJ 479] and noted that it is the State's responsibility to provide a decent burial according to the deceased person's religious beliefs. The Bench emphasised that the dignity accorded to a living person is also extended to a deceased individual within our tradition and culture.

The Court noted the legal protection of burial places, places of worship, and sepulchers under Section 297 of the Indian Penal Code, 1860 (IPC), which prohibits trespassing with the intention of disrespecting the deceased or causing offense to religious sentiments. The Court also noted that Section 404, which deals with the misappropriation of a deceased person's property, and Section 499 and 503, which address defamation and criminal intimidation respectively, involving deceased individuals. Furthermore, the Court reiterated the fundamental right of family members to perform funeral rites for COVID-19 victims, emphasizing the importance of religious and cultural practices in the disposal of deceased individuals across different communities in India.

The Bench observed that the right of the family of a COVID-19 victim to perform the last rites before cremation or burial is akin to a Fundamental Right under Article 21 of the Indian Constitution. The Court emphasized the importance of striking a balance between imposing necessary restrictions during public health crises like the COVID-19 pandemic and ensuring that this right is not unjustly curtailed. The Court concluded that immediate family members should be allowed to perform funeral rites, provided they adhere to precautionary guidelines to minimize the risk of virus transmission.

Article 25 of the Constitution can be invoked by any person. It makes no distinction between citizen and non-citizen, subject to restrictions set out in the Article. There cannot be any distinction between free persons and prisoners either. Prisoners including under-trials can invoke this right under Article 25 of the Constitution”, the Bench observed.

The Court noted that the right to participate in the last rites of a family member is subject to the prevailing circumstances, but will not be denied unless exceptional circumstances warrant it.

Therefore, the Court, in this case, observed that no such circumstances exist. Despite rejecting interim bail, the Court directed the Central Prison Superintendent to facilitate the petitioner's participation in his father's final rites and the 16th-day ceremony. The Court directed the petitioner’s release from prison before the cremation, taken back the next day, and permitted to participate in the subsequent ceremony.

The Court emphasized the need for the prison authorities to respect the petitioner's privacy and maintain a reasonable distance during escorting, acknowledging the sensitivity of the situation.

Accordingly, the Court disposed of the Petition.

Cause Title: S. Gurumoorthi v State

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