Full Judgment Text
CA 1067/2022
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No 1067 of 2022
(Arising out of SLP (C) No 17130 of 2021)
The Surat Parsi Panchayat Board and Another Appellants
Versus
Union of India and Others Respondent(s)
O R D E R
1 Leave granted.
2 This appeal arises from a judgment and order dated 23 July 2021 of a Division
Bench of the High Court of Gujarat.
3 A petition under Article 226 of the Constitution was instituted before the High
Court by the Surat Parsi Panchayat Board seeking, among other things,
directions to allow the performance of Dokhmenashini or funeral rights in the
Dokhmas belonging to the Parsi Zoroastrian community. The basis of the
grievance was that the protocols which were notified on 15 March 2020 by the
Signature Not Verified
Digitally signed by
Chetan Kumar
Date: 2022.02.08
14:52:24 IST
Reason:
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Union Government during the onset of the Covid-19 pandemic setting out
modalities for the disposal of dead bodies do not comport with the tenets of the
Zoroastrian faith. The High Court dismissed the petition.
4 Notice was issued on 6 December 2021after hearing Mr Fali S Nariman, learned
senior counsel for the appellants. The next order of this Court dated 10 January
2022, is extracted below:
“1 Mr Fali S Nariman, learned Senior Counsel appearing on
behalf of the petitioners, has submitted a written note
indicating the manner in which the funeral rites of Parsi
Zoroastrians who have died due to Covid-19 would be
carried out at the Towers of Silence. Learned Senior Counsel
submits that the proposed guidelines meet the concerns of
the Union Government over public health and safety while
preserving the sanctity of the Zoroastrian faith. The guidelines
which have been issued by the Union Government in the
Ministry of Health and Family Welfare (Annexure P-1) do not
take into account the concerns of the Zoroastrian
community in regard to the modalities ordained for funeral
rites.
2 We have requested Mr Tushar Mehta, learned Solicitor
General to render assistance.
3 Ms Deepanwita Priyanka, learned counsel, appears on
behalf of the State of Gujarat.
4 On the request of the learned Solicitor General, list the
Special Leave Petition on 17 January 2022.”
5 During the course of the ensuing hearings, an effort was made to reach an
acceptable resolution of the issues raised. There is on the one hand the
fundamental right founded on Article 25 of the Constitution. On the other hand
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there are concerns based on the need to preserve public health during the time
of the pandemic. The Solicitor General fairly agreed to intervene.
6 An agreed protocol has been placed before the Court which meets both the
concerns reflected above. The protocol reads thus:
“ AGREED PROTOCOL & STANDARD OPERATING PROCEDURE FOR
HANDLING DEAD BODIES OF PARSI ZOROASTRIAN COVID-19
VICTIMS - AS AGREED BETWEEN THE PETITIONERS ON THE ONE HAND
AND THE UNION OF INDIA – REPRESENTED BY THE LEARNED
SOLICITOR GENERAL OF INDIA ON THE OTHER HAND.
Under normal circumstances in the Zoroastrian religion, the
management of dead bodies strictly adheres to specific rules that
aim in separating the corpse from living persons while ensuring the
dignity and respect of the dead as well as for their living relatives.
Even during normal times, Zoroastrian ritual tradition already
conforms to the basic rule required to be implemented during
times of COVID of separating the dead from the living, the family
have no physical contact with the dead member. Since for Parsi
Zoroastrians, the disposal of the dead in the Tower of Silence
(wherever located) is a religiously mandated obligation and duty.
The nature and scale of the corona virus (COVID-19) pandemic,
has created challenges, and the Parsi community and their High
Priests have in consultation, worked out a standard Procedure
which they are willing to undertake to continue keeping in mind
the restrictions and regulations imposed by the Government of
India on all communities pertaining to those who have died due
to a COVID-19 infection during the pandemic.
1A. Dead bodies of the Parsi Zoroastrians who die of Covid 19
will be brought to the funeral parlour in the Tower of Silence
complex and will only be handled by the Nassasalars-
(professional Corpse bearers who have been professionally
employed by the Panchayats). The corpse bearers are and
will continue to be fully vaccinated and their temperatures
duly recorded before every funeral and carrying out
procedures of handling dead bodies as per existing COVID
guidelines.
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1B. Neither relatives nor friends are permitted nor will be
permitted to touch the dead body and it will be ensured
that they will always remain beyond 10 feet from the dead
body.
2. The Nassasalars, at all times, while handling the dead body
of the Parsi Zoroastrian COVID-19 victim will wear the PPE kit,
gloves, face shield and N – 95 mask and the Govt of India
regulations pertaining to dead bodies of COVID – 19 victims
having been read and explained to them and they will be
cautioned to follow the directives of the Govt. of India.
3. The body of the COVID-19 Parsi victim will be brought by
the Nassasalars to the Tower of Silence Complex from
mortuary or home in a body bag which will not be opened,
but as per existing Guidelines, the face of the deceased will
be allowed to be seen from a distance of at least 10 feet
by the family only by unzipping the face – covering of the
body bag.
4. The final funeral prayers i.e. the “GehSarna” (or Paidast)
ceremony (which is the recitation of the first Gatha handed
down by the Prophet Zarathushtra) over the dead body, is
and will be by two Parsi Zoroastrian Priests wearing N-95
masks and gloves, who will stand at a distance of 10 feet
from the dead body.
The final prayers (which last about 1 hour) will be
completed and upon its completion, the Nassasalars will
carry the body to the Dokhma (Tower of Silence) where no
one except the professionally employed corpse bearers
can enter.
As per Parsi religious traditions, no relative can touch, or
much less kiss the body and every person at the funeral will
perform hand hygiene after the funeral ceremony – a
distance of at least 10 feet from the body will always be
maintained. The individuals who will transport the dead
body are the Parsi Nassasalars (the professional pallbearers)
and no one else. Normally two Nassasalars will carry the
body (in the body bag) to the Tower of Silence (Dokhma
No.3) in a bier.
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5. Relatives attending the Gehsarna (Paidast) ceremony will
wear face masks and follow other guidelines as prescribed
by the Government of India and will sit 10 feet away from
the dead body and only such number of family members
will be permitted to attend the funeral as per the
applicable guidelines.
6. One Dokhma No.3 has been set aside for Covid victims
alone and used for performing religious ceremonies for
dead bodies of Parsis COVID-19 victims. This Dokhma No. 3
will not be used for non-Covid-19 dead bodies.
7. Only Dokhma No.3 (in the Tower of Silence) will be used for
dead bodies of Parsi Covid victims. And non-Covid victims’
bodies will be placed in other Dokhmas i.e Dokhma No.1
and Dokhma No.2. Since the principal mode of disposal at
the Tower of Silence is through strong and powerful rays of
the Sun, and hence to deal with the problem of birds of
prey, the Petitioner undertakes to install as soon as possible,
a metallic bird net over Dokhma-No 3 – which is exclusively
reserved for the dead Parsi COVID-19 victims; this will
eliminate contact with birds and animals and will avoid any
intrusion by vultures. Hence, there will be no exposure of the
body to birds etc. once the metallic net gets installed over
Dokhma-No 3.
8. Religious rituals such as reading from religious scripts,
sprinkling holy water and any other last rites that does not
require touching of the body are allowed.
9. After each ceremony, the entire funeral area/parlour will
be washed, sprayed and disinfected. All PPE suits, masks
and face shields will be disposed off and a new set will be
used for each COVID-19 victim’s funeral ceremony.
It is requested that a final Order in invitum be passed in the above
SLP No: 17130/2021 and in Writ Petition No:7585 of 2021 before the
High Court of Gujarat in the above terms.”
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7 A request has been jointly made on behalf of the appellants as well as the
respondents that a final order in invitum be passed both in the appeal and
consequently, in the writ proceedings which became the subject matter of the
judgment of the High Court.
8 The dispute has been amicably settled. The Court has been assured that the
protocol and the Standard Operating Procedure comports with the tenets of
the Zoroastrian faith, while according with the need expressed by the Union
government for the maintenance of safety and hygiene in the context of the
Covid-19 pandemic.
9 We appreciate the fair stand which has been adopted by both the sides in
ensuring that the issues which have been raised before the Gujarat High Court
and, in continuation, in the proceedings before this Court have been amicably
resolved. The dialogic process of judicial review can, as this case reflects,
provide effective solutions which provide acceptable outcomes which promote
harmony. The protocol and the Standard Operating Procedure are accepted
and an order is passed in terms of the statement which has been jointly placed
on the record of these proceedings.
10 The judgment of the Division Bench of the High Court of Gujarat dated 23 July
2021 shall stand set aside. The writ petition shall be governed by the agreed
statement which has been placed on the record in these proceedings.
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11 The appeal is disposed of in the above terms.
12 Pending applications, if any, stand disposed of.
….....…...….......………………........J.
[Dr Dhananjaya Y Chandrachud]
….....…...….......………………........J.
[Surya Kant]
New Delhi;
February 4, 2022
CKB