Bewailing the casteism still prevailing in the country, the Madras High Court noted that even after 75 years of Independence, the government still has to provide separate burial grounds on communal lines. Justice R Subramanian and Justice K Kumaresh Babu observed that the government should ensure that at least the burial grounds should be made common to all communities.
But even in the Twenty First Century, we are left grappling with casteism and classification based on caste is made even in matters of burial of the dead. This situation has to change and the change should be for the better. We sincerely hope that the Government of the day would come forward to make a beginning by making at least burial grounds and burning grounds common to all communities.
The bench was hearing pleas challenging an earlier court order permitting the officials to exhume the dead bodies at a property which was classified as Vadi-Pathai Puramboke and was not a designated burial site.
The appellants contended that under the Tamil Nadu Village Panchayat (Provision of Burial and Burning Grounds) Rules, 1999 the burial of the dead in a particular place could not be said to be illegal in the absence of prohibition. Though the Panchayats had authority to designate a place of burial ground, it would not result in prohibition from burying in other places. The appellants further submitted that it had become a custom to bury the dead in the particular plot.
The respondents however contended that a burial cannot happen in the place designated as a Vandi Pathai or Cart Track. It was also submitted that though there was no restriction, it was open to the State to prevent burial in particular place when a convenient place was duly authorized.
Looking into the Tamil Nadu Village Panchayat (Provision of Burial and Burning Grounds) Rules 1999, Tamil Nadu District Municipalities Act 1920 and the Chennai City Municipal Corporation Act, the court noted that while burying or burning of the dead in Municipal and City Municipal Corporation areas outside the areas licensed or designated as burial or burning grounds is completely prohibited, the same is not the case in a Panchayat area. In panchayat area, the prohibition was only with respect to places which are located within a distance of 90 meters from the dwelling unit or a source of drinking water supply.
According to the Tamil Nadu Village Panchayats (Provision of Burial and Burning Grounds) Rules, 1999 under Rule no. 7 as place for burial and burning grounds. –
(1) No person shall bury or burn or cause to be buried or burnt any corpse in any place within ninety meters of a dwelling place or source of drinking water-supply other than a place licensed as a burial and burning ground.
(2) The person having control of a place for burying or burning the dead shall give information of every burial or burning of a corpse at such a place to any officer appointed by the village panchayat for this purpose.
(3) If a village panchayat is satisfied –
(a) that any registered or licenced place burying or burning of the dead is in such a state or situation as to be or likely to become dangerous to the health of persons living in the neighbourhood thereof; or
(b) that any burial ground is overcrowded with graves, and if in the case of a public burial or burning ground, another convenient place duly authorised for burying or burning of the dead exists or has been provided for the persons who would ordinarily make use of such place, it may, with the previous sanction of the Assistant Director (Panchayats), give notice that it shall be not lawful after the expiry of a period of not less than two months to be specified in such notice to bury or bum any corpse at such place.
(4) Every notice given under sub-rule (3) shall be published by affixture to the notice board of the village pancnayat and by beat of drum in the village.
(5) No person shall, in contravention of any notice under sub-rule (3) and after expiration of the period specified in such notice, bury or bum or cause or permit to be buried or burnt any corpse at such place.
(6) The Inspector may cancel or modify any notice issued by a village panchayat under sub-rule (3).
(7) Whoever contravenes any of the provisions of these rules shall be punishable with fine which may extend to one hundred rupees or in case of a continuing breach with fine not exceeding fifteen rupees for every day during which the breach, continues after conviction of the first breach:
Provided that no prosecution shall be instituted for contravening the provisions of sub-rule (1) of rule 7 without the written sanction of the executive authority of the village panchayat concerned.
The court noted that the plot in question had several dead bodies and very old graves in it as per the Advocate Commissioner’s report. The final report submitted by the Inspector of Police also observed that the land in question had been used as a burial ground for several years.
The court held that in the absence of any prohibition in any laws, it could not agree with the order of the writ court to exhume the dead bodies.
Material is also available to show that there are designated burial grounds on community basis in the Village. In the absence of any prohibition in the enactment as is the case in the Tamil Nadu District Municipality Act and Chennai City Municipal Corporation Act, we are unable to persuade ourselves to agree with the conclusions of the Writ Court.
At the same time, the court cautioned that the “no prohibition” aspect should not be used as a license to bury or dispose of the dead anywhere and everywhere. The court added that wherever there were designated burial grounds, such places had to be used unless there was a custom in the Village to use any other area.
The fact that there is no prohibition cannot be used as a license to bury or dispose of the dead anywhere and everywhere. Wherever there are designated places for burial and burning of the corpse, burial and burning must be restricted to those designated places unless there is a custom in the Village or area concerned to use any other place for burial or a burning of corpses.
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