HC QUASHES BAN ON CREMATING OUTSIDERS AT ‘SOUTH KASHI’

The Kerala High Court in Krishna Das C. Vs. State of Kerala judgment dated 2 July, 2015 held that “the last rite of dead bodies, according to Hindu rites and customs, is the right which cannot be denied to the community, but burning ghats/cematries have to come up with the modern scientific measures to avoid the environmental pollution”.A Division Bench comprised of Chief Justice Ashok Bhushan and A.M. Shaffique observed that “when the statutory scheme as delineated by Rule 10, clearly contemplated that when the burning ghat has endangered or likely to endanger the health of persons living in the neighbourhood thereof, a decision can be taken to prohibit the use of burning ghats. Thus, the statutory scheme contemplated closure of the burning ghats subject to statutory requirement as prescribed therein. There is no such concept of partial closure or closure for the bodies coming from outside the Panchayat area”.

“The legislative intendment in Rule 10 is that the Panchayat, for taking any such decision, has to submit its decision to the District Medical officer, who, in turn, shall send his recommendation to the District Collector and it is only after the District Collector’s permission, the decision of prohibition of burning ghats can be taken,” the Judgment said.

“Ivor Madom” (a place known as the ‘Kashi of the South’) located at Pampadi desom in Thiruvilwamala Grama Panchayat on the banks of river Bharathapuzha is believed as one of the sacred burning ghats in South India by Hindus. The main issue is as to whether the Panchayat can pass a Resolution restricting the use of the burning ghat only by persons within the territorial limits of the Panchayat.

Petitioners pleaded that Ivor Madom situated on the banks of river Bharathapuzha is one of the most sacred burning ghats in the country and one of the most sacred burning ghats in South India. It is pleaded that in the five snana ghats on the banks of river Bharathapuzha cremation is done only in Thiruvilwamala.

The petitioner submits that prohibiting use of burning ghats to members of the Community situated outside the Panchayat area is violative of Article 25.

The resolution of Panchayat prohibits with effect from 1.4.2011 bodies from outside the Panchayat area to the burning ghats. Whether the resolution is in accordance with the provisions of the Kerala Panchayat Raj Act, 1994 and the Rules, 1998 is the question which was negatived by the High Court.

Allowing the writ petition the High Court quashed the Resolution dated 05.03.2011 of the Thiruvilwamala Grama Panchayat. However, the Panchayat is free to provide option of electric crematorium at the burning ghat to check the environmental pollution. The State Government shall extend necessary help to the Panchayat in setting up the electric crematorium.

The Court directed to afford adequate police protection for peaceful conduct of cremation of dead bodies in the Ivor Madom on the banks of river Bharathapuzha.

The claim of the petitioner is of using the burning ghats from time immemorial, which is part and parcel of religious practice pertaining to last rite of a person included in “sixteen samskars”.

The reason which has been given by the Panchayat in its counter affidavit to support the decision is the factum of environmental pollution caused by burning of large number of dead bodies everyday in the burning ghats.

The resolution of the Panchayat does not give any reason for prohibiting the burning ghats for persons situate outside the Panchayat area, the Court ruled.

IN THE HIGH COURT OF KERALA AT ERNAKULAM 

ASHOK BHUSHAN, C.J. and A.M. SHAFFIQUE, J.

W.P(C) Nos.8010 of 2011 W.P(C) No.8388 of 2011, W.P(C) No. 10040 of 2011, W.P(C)No.24154 of 2012 & W.P(C) No.11343 of 2011

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