The Supreme Court on Monday delivered a split verdict on whether a deceased Christian, who had converted from the Scheduled Tribe (ST) community, could be buried in the common burial ground where his Hindu ancestors were buried.
The Chhattisgarh government had insisted that the deceased should be buried in a separate burial ground for Christians, 20 kilometers away from the village, to avoid potential law and order issues.
The deceased’s son, however, said that his father had a right to be buried in the same land as his ancestors, adding that he should not face such discrimination merely because he converted to Christianity.
Noting that the deceased had been lying in the morgue since January 7, the Division Bench of Justice BV Nagarathna and Justice Satish Chandra Sharma did not refer the matter to a larger Bench and instead, issued directions under Article 142.
While Justice Nagarathna proposed that the deceased be buried in his family’s private agricultural land, Justice Sharma upheld the Chhattisgarh High Court order, refusing permission to bury the deceased in his village grounds.
Rejecting the Chhattisgarh government’s concerns that existing rules usually did not allow such an option, Justice Nagarathna termed the refusal to bury the Christian at the village burial ground as unfortunate, discriminatory and unconstitutional.
She allowed the petition filed by the deceased’s son and directed that burial of the deceased should be conducted in his private agricultural land. She further ordered the respondent (State) to provide security, keeping in view the peculiar facts and circumstances.
The Supreme Court judge also ordered the State to earmark a graveyard for Christians across the State within two months.
She observed that the affidavit filed by ASP Bastar discriminated on the grounds of religion and also violated Articles 21 and 14. Noting that a State could not deny equality before law, she said that prohibition of discrimination on the grounds of religion, sex and caste was prohibited under Article 15.
Expressing displeasure over the attitude of the village panchayat, she said that it gave rise to hostile discrimination. Justice Nagarathna further criticised the State for failing to act against such hostile attitudes and betraying the principle of secularism.
Calling secularism and fraternity symbols of brotherhood between all faiths, which were essential for the social fabric of the country, Justice Nagarathna said it was the duty of all to foster fraternity among different sectionssaid.
In his judgment, Justice Sharma, while noting that a sweeping and illusionary right can lead to public order disruption, observed that there was no reason for an unqualified right to burial.
He said the maintenance of public order was in the larger interest of society.
The Supreme Court judge observed that the case seemed to boil down to whether the right to conduct religious burial ceremonies could be extended to places earmarked for other faiths in a blanket manner.
He said the freedom of religion could not be stretched to stake a right to be buried in grounds earmarked for another religion.
Since burial grounds were often earmarked for specific faiths, in the present case, the space designated for the Christian deceased was 20 km away.
The freedom of religion could not be stretched to stake a right to be buried in grounds earmarked for another religion, he said, adding that the right was subject to public order, ex facie, and the State was allowed to frame regulations.
Directing that the deceased be buried in the burial ground of village Karakwal, located 20 km away from the deceased’s village, Justice Sharma directed the State to provide all logistic support for transporting the body to the burial grounds.