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A matter of life & death

india Updated: Jun 05, 2009 21:55 IST
Nilova Roy Chaudhury

An elderly man’s quest to follow his faith with dignity in death has become Bri-tain's most significant case for religious freedom in British legal history. Devender Kumar Ghai, 71, president of the Anglo-Asian Friendship So-ciety, a leading multifaith registered charity organisation, is seeking the right to be cremated by his son in an open-air funeral pyre when he dies. A British court last month turned down his plea on the ground that open-air pyres are offensive.

Ironically, as Pakistan struggles to overcome terror in the form of the Taliban, that has even levied a jaziya tax on Hindus and Sikhs, the same country is the first Islamic nation ever to permit open air Hindu funerals.

Construction of a shamshaan ghat at the cremation site on Lahore's Bund Road, functional since November 2005, was actually funded by the Punjab government (through an order by Rana Ijaz Ahmed Khan, Law and Human Rights' Advisor to Punjab's Chief Minister). Following Pakistan, the other Taliban-plagued country, Afghanistan, allotted permission and space for open cremations in 2006, overturning a decision earlier imposed by the Taliban government.

Meanwhile Britain, widely perceived as a nation that champions equality, human rights and individual freedoms, has denied this right' to Hindus living in that country, claiming that open funeral pyres are offensive.

It however, does allow the use of closed electric crematoria in which bodies are burnt in batches of three.

According to residents of Liverpool and several other British cities, dogs and cats are occasionally placed in coffins to make up the numbers if there aren't enough human bodies available for cremation on a particular day. Ghai has found this practice the most offensive. Ashes of all the bodies mingle together and nobody is quite sure whose ashes are being collected for immersion.

Dispatch with dignity
In the United Kingdom Hindus are not expected to marry in churches, which is why Ghai, who came to live in Britain from Kenya in 1958, finds the practice of Hindu last rites being shoehorned through chapel buildings and industrial waste disposal procedures objectionable.

Seeking the right to “die with dignity,” Ghai, echoing the sentiments of thousands who have backed his legal journey, forced a judge, Justice Sir Andrew Collins, in March 2007 to allow him, “in public interest,” to take his landmark judicial review to the Royal Court of Justice in London.

Ghai recently lost his first appeal but has been permitted to file a further appeal, which he filed on June 1. It is likely to be taken up by the House of Lords. In his order of May 8, 2009, Mr Justice Cranston said that by Regulation 13 of the Cremation (England and Wales) Regulations (SI 2008 No 2841) all cremations had to take place in a crematorium.
By Section 2 of the Cremation Act 1902 a crematorium was a building and by Section 8 of that Act the burning of human remains other than in accordance with the provisions of the 2008 Regulations was an offence.

It was therefore, his judgment said, an offence to burn human remains on an open-air funeral pyre.

The point at issue for the ailing Ghai, who was refused permission by the civic authorities of Newcastle to build and fund a separate, secluded open air cremation ground, is equality with all minority communities in Britain.

That and the right for the 600,000-strong Hindu community to be able to choose how they wish to be disposed of.

What is being sought is not a change in British laws. What Ghai and those who back him seek are the equal rights that have been conferred on other communities like, for example, the allocation of separate burial grounds for the Jewish and Muslim communities, to follow their religious practices as a matter of course.

‘The faith of my fathers’
Ghai also disputes the ruling that open cremations are a matter of ‘tradition’ and not ‘faith’ claiming that open-air pyres are “central” to Hindu and Sikh beliefs. In his appeal, Ghai’s lawyers cite the Rig Veda, which states that ritual cremation in the open air is the theologically prescribed form of Hindu last rites, which allows spiritual revivification and sacrificial transformation by which the atman (soul) is ritually untied and detached from the spiritual world (Rig Veda X.16.1 and 16.5).

The five constituent elements of the corporeal body must all be present at the time of cremation (Atharva Veda 18.2, Ashvalayan Grihya Sutras .3.27), to ensure the antyeshti (last rites) releases the atman to attain sadgati (liberation), otherwise the departed soul may suffer distress (Garuda Purana II.9.47).

The petitioners claim open pyres also damage the environment far less than “being bundled in a box.”

The burning of one coffin in a crematorium consumes the energy equivalent of a 4,800-mile car journey and emits large quantities of noxious mercury unlike an open pyre funeral, which causes “no significant harm”.

The British Department of Justice, headed by Jack Straw, has been virulent in its opposition to Ghai’s appeal. It states that open cremations are a matter of tradition not faith and hence “not protected as a religious belief.”

Straw intervened in the case, with the contention that British law prohibits open pyre funerals, which are abhorrent and that his opposition stems from concerns of public health and public safety.

Both royal and liberal support
However, Ghai’s lawyers argue that British courts have confirmed the legality of natural cremation since 1894. This enabled successive British governments to facilitate funeral pyres for Indian British army soldiers during the first world war and for visiting Nepalese royalty in 1934.

In July 2006, Ghai even conducted an open-air cremation for Rajpal Mehat in Northumberland, and was not prosecuted.

Ghai's cause is widely supported now by the mainstream representative Hindu and Sikh bodies in Britain and some members of the British nobility, including the Prince of Wales and the Viscount Devonport.