Case Note & Summary
The appeal arose from a judgment and order dated 23 July 2021 of a Division Bench of the High Court of Gujarat, which dismissed a petition under Article 226 of the Constitution filed by the Surat Parsi Panchayat Board. The petition sought directions to allow the performance of Dokhmenashini, or funeral rights, in the Dokhmas (Towers of Silence) belonging to the Parsi Zoroastrian community, challenging Union Government protocols notified on 15 March 2020 for disposal of dead bodies during the Covid-19 pandemic. The appellants argued that these protocols did not comport with the tenets of the Zoroastrian faith, infringing upon their fundamental right to religion under Article 25 of the Constitution. The respondents, represented by the Union Government and the State of Gujarat, raised concerns about public health and safety during the pandemic. The Supreme Court, after granting leave and issuing notice, facilitated hearings where both sides engaged in a dialogic process. The Solicitor General intervened, and an agreed protocol was jointly submitted, outlining a Standard Operating Procedure for handling dead bodies of Parsi Zoroastrian Covid-19 victims. This protocol ensured that funeral rites, such as the GehSarna ceremony, could be performed with modifications like maintaining distance, using personal protective equipment, and designating a specific Dokhma for Covid-19 victims, while adhering to government health guidelines. The Court analyzed the balance between religious freedom and public health, appreciating the fair stand adopted by both parties. It held that the agreed protocol met the concerns of both sides, preserving religious sanctity and ensuring safety. Consequently, the Court set aside the High Court's judgment, disposed of the appeal in terms of the joint statement, and directed that the writ petition be governed by the agreed protocol. The decision emphasized the role of judicial review in promoting harmonious resolutions through dialogue.
Headnote
A) Constitutional Law - Fundamental Rights - Article 25 - Religious Freedom - Constitution of India, 1950, Article 25 - The appellants challenged Union Government protocols for disposal of dead bodies during Covid-19, arguing they did not comport with Zoroastrian funeral rites (Dokhmenashini). The Court recognized the fundamental right under Article 25 and facilitated a dialogic process to balance it with public health concerns. Held that the agreed protocol preserves religious sanctity while ensuring safety, setting aside the High Court's dismissal (Paras 3-5, 8-10). B) Public Health Law - Pandemic Management - Covid-19 Protocols - Not mentioned - The dispute involved Union Government protocols dated 15 March 2020 for disposal of dead bodies during the Covid-19 pandemic. The Court noted public health concerns and worked towards a resolution that integrates community-proposed guidelines with government safety requirements. Held that the agreed Standard Operating Procedure addresses both religious and health imperatives (Paras 3, 5-6, 8). C) Civil Procedure - Judicial Review - Amicable Settlement - Not mentioned - The Court employed judicial review as a dialogic process to resolve the dispute amicably between the appellants and respondents. An agreed protocol was jointly submitted, meeting religious tenets and public health needs. Held that the protocol is accepted, and the appeal is disposed of in terms of the joint statement (Paras 6-9, 11).
Issue of Consideration
Whether the protocols for disposal of dead bodies during the Covid-19 pandemic, as notified by the Union Government, infringe upon the fundamental right to religion of the Parsi Zoroastrian community under Article 25 of the Constitution, and whether an amicable resolution can be reached to balance religious tenets with public health requirements
Final Decision
Appeal disposed of in terms of agreed protocol; judgment of High Court set aside; writ petition governed by agreed statement
Law Points
- Fundamental right to religion under Article 25 of the Constitution
- balance between religious freedom and public health concerns
- judicial review as a dialogic process for amicable resolution
- acceptance of agreed protocols in public interest litigation
