Segregated burial grounds, a violation of the Constitution: Madras High Court

The court observed that allowing a separate burial ground based on caste promotes segregation, that is the opposite of the idea of Equality envisaged by the Constitution

Madras High Court

Allow entire cremation and burial grounds to be used by members of all castes and communities sans discrimination, the Madras High Court advised the Tamil Nadu government while disposing a petition requesting separate burial grounds for the Arunthathiyar community.

Earlier in 2021, petitioners B. Kalaiselvi and Mala Rajaram complained about the scheduled caste community members burying their dead in Odoi Poromboke region in Madur village of Kallakurichi district.The petitioners’ lands bound to this area receive rainwater during the monsoon season. The pleas called for the allocation of a permanent burial place for the SC folk away from their land. They argued that the nearby Manimuthaar river will be affected if the Odoi is used as a burial ground.

However, viewing the request as an act of segregation, Justice R. Mahadevan said, “Burial/cremation of bodies on the basis of caste or community within a religion, as well as preventing members of any caste/community from burying/cremating their dead in common cremation grounds… and earmarking such grounds for any particular caste/community exclusively, is violative of Articles 14, 15, 17 and 25 of the Constitution as well as against the spirit of the Fundamental Duties enshrined in the Constitution.”

Accordingly, he denied the plea for a permanent burial ground for the Arunthathiyar community, but encouraged the petitioners and the state government to earmark land for common burials and cremations. Justice Mahadevan also condemned the district officials’ earlier intentions to create separate burial grounds for the community. Instead, he directed authorities to remove all boards near existing cremation grounds that only stated exclusive use of the land by specific castes and communities.

“Every citizen should be entitled to use the common burial/cremation grounds with all connected facilities and amenities attached thereto, without being discriminated against or segregated,” said the court order.

In the beginning of the order, Justice Mahadevan acknowledged how caste and class hierarchy affect the right to a dignified death due to ownership of such grounds by the privileged groups. He said it is “an undeniable fact” that several Dalits, Arunthathiyars and other marginalised groups do not have lands where they can pay their final respects to the deceased. Some members cannot even carry the dead bodies across certain lands belonging to the people of the privileged castes.

For this reason, the court directed the government to ensure the “prevention of any instance of social disability in a manner as to act towards the fulfilment of its commitment under the Constitution as well as the International Convention for Elimination of All Forms Of Racial Discrimination, and the Declaration on Race and Racial Prejudice, to which India is a signatory.”

The “social disability” is to be addressed via the inclusion of aspects of cremation/burial for different communities in society, and specific provisions for construction and maintenance of common cremation/burial grounds for all communities.

The court also recommended awareness programmes bring about social change. For this, it suggested granting incentives, financial and otherwise to constituencies/wards, etc. for an increased acceptance for common cremation/burial grounds irrespective of caste or community with a sense of mutual respect.

Justice Mahadevan said that values of religious and communal tolerance and mutual respect for various cultures and religions should be included in school curriculum. Similarly, teachers should address issues of segregation and apartheid by instilling a scientific temper in children.

“This would go a long way in fulfilling the promise of substantive equality as enshrined in the fundamental rights as well as the ideals of justice, equality, liberty and fraternity as envisioned in the Preamble to our Constitution. This measure is particularly important, as the best way to bring about societal change is to shape young minds in their formative years of educational and socio-cultural conditioning,” he said.

The full order can be read here:


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