Isabella Mariam

The High Court of Judicature for Rajasthan Division Bench of Justice Dr. Pushpendra Singh Bhati and Justice Bipin Gupta held that discrimination cannot be permitted to extend beyond death and directed the State to consider the formulation of a uniform policy for regulating burial and cremation grounds. The Court ordered the State to file an affidavit within two weeks, clarifying its position on creating a common framework for post-death rituals. The Bench stated that the dignity of the human person continues after death and stated that public land for cremation or burial cannot be monopolized by any community. The Court also stated the statutory obligations of municipalities and panchayats, constitutional protections, and international human rights standards while delivering its directions.

The matter concerned a dispute over access to burial grounds by the Kanchan Patil (Mirasi) Samaj, a community residing predominantly in Western Rajasthan. The Court recorded that the origin of the community traces back to the Jasnathi Jat group. During the 18th century, under the influence of various Sufi saints, they adopted Sufi Islam but retained certain cultural practices of their original community. Despite this mixed identity, the Samaj continued to follow traditions related to marriage, birth, and death similar to their ancestral practices.

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The petitioner community approached the Court, stating that they were being denied access to a kabaristan (graveyard). Counsel for the petitioners, Mr. Moti Singh, submitted that the land in question had been set apart for use as shamshan/kabaristan but was not exclusively vested in any community, religious trust, or Waqf Board. He asserted that the land remained public property under the State of Rajasthan and was designated for last rites without restriction. According to the petitioner, denying them access was arbitrary, discriminatory, and violative of Articles 14, 19, 21, and 25 of the Constitution of India.

The petitioners also contended that despite making representations to the Jodhpur Development Authority seeking allotment of land for burial, no action was taken. They alleged that the Rajasthan Muslim Waqf Board had assumed de facto control over the land, restraining the community from performing burials without any legal authority. Counsel argued that no notification or allotment had vested the land with the Waqf Board.

In response, the Rajasthan Board of Muslim Waqfs contended that the kabaristan, though not created through permanent dedication, had by long and continuous use acquired the character of waqf property. The Board argued that under the Waqf Act, 1995, it was under its management for the benefit of Muslims. It further contended that once a community adopts Islam, matters relating to marriage, birth, death, and burial must be governed under Muslim personal law. Accordingly, the Board maintained that the burial ground was available for use by all governed by Muslim law, without discrimination, and that the petitioner’s grievance was unfounded.

The Court noted that the matter reflected deep-rooted social discrimination. It recalled the Preamble of the Constitution, which assures justice, liberty, equality, and fraternity, and observed that fraternity is not ornamental but foundational in ensuring both individual dignity and national unity. The Court recorded that Section 275 of the Rajasthan Municipalities Act, 2009, imposes a duty on municipalities to construct and regulate burial and cremation grounds, while Section 104 of the Rajasthan Panchayati Raj Act, 1994 empowers Panchayats similarly. The Court held that these provisions indicate a legislative intent to keep such lands accessible to all citizens.

The Bench recorded: “Mankind and life may divide, but death unites.” The Court observed that while society may be fractured by caste, creed, or religion during life, “in death all such distinctions dissolve, and every human being returns to the same origin.” It stated that the dignity of an individual continues after death, and final rites form a solemn recognition of human existence.

Referring to Supreme Court precedent, the Court quoted: “The right to dignity and fair treatment under Article 21 of the Constitution of India is not only available to a living man but also to his body after his death.” [Pt. Parmanand Katara v. Union of India]. It further noted that in Ashray Adhikar Abhiyan v. Union of India, the Supreme Court had held that even unclaimed deceased persons are entitled to a dignified burial.

The Court stated: “The performance of final rites is an intrinsic and inseparable part of such practice. Denial of space to perform these rites amounts to direct interference with this fundamental freedom.” It stated that Articles 14, 15, 21, and 25 collectively protect the rights of all communities to access burial grounds without discrimination.

The Bench observed that denial of access to burial grounds is “a grave violation of constitutional morality and a breach of India’s international commitments to uphold the dignity of every human being, even in death.” The Court cited the Geneva Conventions of 1949 and the International Covenant on Civil and Political Rights, 1966, to reinforce its conclusion.

It also noted the NHRC Advisory of 2021 which affirmed: “no discrimination in the treatment of the body in any form, irrespective of caste, community, religion or region; the right to a decent and timely burial or cremation; and the duty of the State and local authorities to ensure that burial/cremation grounds are maintained as public facilities accessible to all.”

The Bench referred to precedents, including the Madras High Court’s judgement in P. Muthusamy v. P. Vennila where it was recorded that “even after seventy-five years of Independence, casteism and classification based on caste is made even in matters of burial of the dead.” Similarly, in B. Kalaiselvi v. District Collector, Kallakurichi, the Madras High Court held that the right to dignified burial cannot be denied on the basis of caste or community. The Meghalaya High Court in Re-Seng Khasi Hima Crematorium v. State of Meghalaya directed the State to acquire sufficient land for common burial grounds.

The Rajasthan High Court observed: “Public lands earmarked for cremation or burial cannot be segregated or monopolized by any community. Any such practice of exclusion or reservation of common land for the benefit of a particular caste, creed, or community is antithetical to the constitutional vision of equality, fraternity, and dignity.”

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The Court further recorded: “The dignity of the human person is not extinguished with the last breath but continues in the performance of final rites.” It noted that unchecked creation of caste- or community-specific burial grounds would deplete land needed for public infrastructure. It stated that a balanced and uniform policy by the State was essential to ensure equitable dignity in death while preserving land for civic purposes.

The Court stated: “It is, thus, high time that the State formulates a uniform policy to deal with the burial/cremation/shamshan/any kind of public place utilised for the purpose of performing post-death rituals.” It recorded that caste- and religion-based bifurcations had created disputes, and the State must frame a comprehensive approach to ensure dignity in last rites for all citizens.

The Bench directed: “Learned Additional Advocate General Mr. B.L. Bhati is directed to file an affidavit in response, stating clearly the stand of the State with regard to the organization and regulation of post-death rituals for all sections of society, and whether a common approach can be devised to address the situation without creating disharmony or damaging the social fabric.”

The matter was ordered to be listed after two weeks for further consideration.

Advocates Representing the Parties

For the Petitioners: Mr. Moti Singh

For the Respondents: Mr. B.L. Bhati, AAG with Mr. Sandeep Soni, Mr. B.P. Bohra, Sr. CGSC with Mr. Vaibhav Bhansali, Mr. Jitesh Suthar, and Mr. Usman Ghani

Case Title: Kanchan Patil (Mirasi) Samaj v. State of Rajasthan

Case Number: D.B. Civil Writ Petition No. 8260/2021

Bench: Justice Dr. Pushpendra Singh Bhati and Justice Bipin Gupta