THE SURAT PARSI PANCHAYAT BOARD AND ANOTHER versus UNION OF INDIA AND OTHERS on 4 February 2022

ORDER

1. Leave granted.D

2. This appeal arises from a judgment and order dated 23 July2021 of a Division Bench of the High Court of Gujarat.

3. A petition under Article 226 of the Constitution was institutedbefore the High Court by the Surat Parsi Panchayat Board seeking,among other things, directions to allow the performance of DokhmenashiniEor funeral rights in the Dokhmas belonging to the Parsi Zoroastriancommunity. The basis of the grievance was that the protocols whichwere notified on 15 March 2020 by the Union Government during theonset of the Covid-19 pandemic setting out modalities for the disposal ofdead bodies do not comport with the tenets of the Zoroastrian faith. TheFHigh Court dismissed the petition.

4. Notice was issued on 6 December 2021after hearing Mr Fali SNariman, learned senior counsel for the appellants. The next order ofthis Court dated 10 January 2022, is extracted below:

“1Mr Fali S Nariman, learned Senior Counsel appearing onGbehalf of the petitioners, has submitted a written noteindicating the manner in which the funeral rites of ParsiZoroastrians who have died due to Covid-19 would becarried out at the Towers of Silence. Learned SeniorCounsel submits that the proposed guidelines meet theHconcerns of the Union Government over public health and THE SURAT PARSI PANCHAYAT BOARD AND ANOTHER v. UNIONOF INDIA AND OTHERS

safety while preserving the sanctity of the Zoroastrian faith.The guidelines which have been issued by the UnionGovernment in the Ministry of Health and Family Welfare(Annexure P-1) do not take into account the concerns ofthe Zoroastrian community in regard to the modalitiesordained for funeral rites.

2We have requested Mr Tushar Mehta, learned SolicitorGeneral to render assistance.

3Ms Deepanwita Priyanka, learned counsel, appears onbehalf of the State of Gujarat.

4On the request of the learned Solicitor General, list theSpecial Leave Petition on 17 January 2022.”

5. During the course of the ensuing hearings, an effort was madeto reach an acceptable resolution of the issues raised. There is on theone hand the fundamental right founded on Article 25 of the Constitution.On the other hand there are concerns based on the need to preservepublic health during the time of the pandemic. The Solicitor Generalfairly agreed to intervene.

6. An agreed protocol has been placed before the Court whichmeets both the concerns reflected above. The protocol reads thus:

“AGREED PROTOCOL & STANDARD OPERATINGPROCEDURE FOR HANDLING DEAD BODIES OFPARSI ZOROASTRIAN COVID-19 VICTIMS - ASAGREED BETWEEN THE PETITIONERS ON THE ONEHAND AND THE UNION OF INDIA – REPRESENTEDBY THE LEARNED SOLICITOR GENERAL OF INDIAON THE OTHER HAND.

Under normal circumstances in the Zoroastrian religion, themanagement of dead bodies strictly adheres to specific rules thataim in separating the corpse from living persons while ensuringthe dignity and respect of the dead as well as for their living relatives.Even during normal times, Zoroastrian ritual tradition alreadyconforms to the basic rule required to be implemented during timesof COVID of separating the dead from the living, the family haveno physical contact with the dead member. Since for ParsiZoroastrians, the disposal of the dead in the Tower of Silence(wherever located) is a religiously mandated obligation and duty.

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AThe nature and scale of the corona virus (COVID-19) pandemic,has created challenges, and the Parsi community and their HighPriests have in consultation, worked out a standard Procedurewhich they are willing to undertake to continue keeping in mindthe restrictions and regulations imposed by the Government ofIndia on all communities pertaining to those who have died due toBa COVID-19 infection during the pandemic.

1A.Dead bodies of the Parsi Zoroastrians who die of Covid 19will be brought to the funeral parlour in the Tower of Silencecomplex and will only be handled by the Nassasalars-C(professional Corpse bearers who have been professionallyemployed by the Panchayats). The corpse bearers are andwill continue to be fully vaccinated and their temperaturesduly recorded before every funeral and carrying outprocedures of handling dead bodies as per existing COVIDguidelines.

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1B.Neither relatives nor friends are permitted nor will bepermitted to touch the dead body and it will be ensured thatthey will always remain beyond 10 feet from the dead body.

2. The Nassasalars, at all times, while handling the dead bodyEof the Parsi Zoroastrian COVID-19 victim will wear thePPE kit, gloves, face shield and N – 95 mask and the Govtof India regulations pertaining to dead bodies of COVID –19 victims having been read and explained to them and theywill be cautioned to follow the directives of the Govt. ofIndia.F

3. The body of the COVID-19 Parsi victim will be brought bythe Nassasalars to the Tower of Silence Complex frommortuary or home in a body bag which will not be opened,but as per existing Guidelines, the face of the deceased willbe allowed to be seen from a distance of at least 10 feet byGthe family only by unzipping the face – covering of the bodybag.

4. The final funeral prayers i.e. the “GehSarna” (or Paidast)ceremony (which is the recitation of the first Gatha handeddown by the Prophet Zarathushtra) over the dead body, isH

THE SURAT PARSI PANCHAYAT BOARD AND ANOTHER v. UNIONOF INDIA AND OTHERS

and will be by two Parsi Zoroastrian Priests wearing N-95masks and gloves, who will stand at a distance of 10 feetfrom the dead body.

The final prayers (which last about 1 hour)will be completedand upon its completion, the Nassasalars will carry the bodyto the Dokhma (Tower of Silence) where no one exceptthe professionally employed corpse bearers can enter.

As per Parsi religious traditions, no relative can touch, ormuch less kiss the body and every person at the funeralwill perform hand hygiene after the funeral ceremony – adistance of at least 10 feet from the body will always bemaintained. The individuals who will transport the dead bodyare the Parsi Nassasalars (the professional pallbearers) andno one else. Normally two Nassasalars will carry the body(in the body bag) to the Tower of Silence (Dokhma No.3)in a bier.

5. Relatives attending the Gehsarna (Paidast) ceremony willwear face masks and follow other guidelines as prescribedby the Government of India and will sit 10 feet away fromthe dead body and only such number of family memberswill be permitted to attend the funeral as per the applicableguidelines.

6. One Dokhma No.3 has been set asi de for Covid victimsalone and used for performing religious ceremonies for deadbodies of Parsis COVID-19 victims. This Dokhma No. 3will not be used for non-Covid-19 dead bodies.

7. Only Dokhma No.3 (in the Tower of Silence) will be usedfor dead bodies of Parsi Covid victims. And non-Covidvictims’ bodies will be placed in other Dokhmas i.e DokhmaNo.1 and Dokhma No.2. Since the principal mode of disposalat the Tower of Silence is through strong and powerful raysof the Sun, and hence to deal with the problem of birds ofprey, the Petitioner undertakes to install as soon as possible,a metallic bird net over Dokhma-No 3 – which is exclusivelyreserved for the dead Parsi COVID-19 victims; this willeliminate contact with birds and animals and will avoid anyintrusion by vultures. Hence, there will be no exposure of

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Athe body to birds etc. once the metallic net gets installedover Dokhma-No 3.

8. Religious rituals such as reading from religious scripts,sprinkling holy water and any other last rites that does notrequire touching of the body are allowed.

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9. After each ceremony, the entire funeral area/parlour willbe washed, sprayed and disinfected. All PPE suits, masksand face shields will be disposed off and a new set will beused for each COVID-19 victim’s funeral ceremony.

It is requested that a final Order in invitum be passed inCthe above SLP No: 17130/2021 and in Writ Petition No:7585of 2021 before the High Court of Gujarat in the aboveterms.”

7. A request has been jointly made on behalf of the appellants asDwell as the respondents that a final order in invitum be passed both inthe appeal and consequently, in the writ proceedings which became thesubject matter of the judgment of the High Court.

8. The dispute has been amicably settled. The Court has beenassured that the protocol and the Standard Operating ProcedureEcomports with the tenets of the Zoroastrian faith, while according withthe need expressed by the Union government for the maintenance ofsafety and hygiene in the context of the Covid-19 pandemic.

9. We appreciate the fair stand which has been adopted by boththe sides in ensuring that the issues which have been raised before theFGujarat High Court and, in continuation, in the proceedings before thisCourt have been amicably resolved. The dialogic process of judicialreview can, as this case reflects, provide effective solutions which provideacceptable outcomes which promote harmony. The protocol and theStandard Operating Procedure are accepted and an order is passed interms of the statement which has been jointly placed on the record ofGthese proceedings.

10. The judgment of the Division Bench of the High Court ofGujarat dated 23 July 2021 shall stand set aside. The writ petition shallbe governed by the agreed statement which has been placed on therecord in these proceedings.H

11. The appeal is disposed of in the above terms.

12. Pending applications, if any, stand disposed of.

Devika Gujral

Appeal disposed of.

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