Supreme Court of India
THE SURAT PARSI PANCHAYAT BOARD AND ANOTHERversusUNION OF INDIA AND OTHERS
- Citation
- 2022 INSC 154
- Decided
- 4 February 2022
- Disposal
- Disposed off
Holding
The agreed protocol that balances Zoroastrian funeral rites with COVID‑19 safety measures is constitutionally valid, and the High Court's dismissal is set aside.
Summary
The Surat Parsi Panchayat Board filed a petition under Article 226 seeking directions to allow the performance of Dokhmenashini, the traditional Zoroastrian funeral rites, asserting that the Union Government's COVID‑19 dead‑body disposal protocols violated their religious freedom under Article 25. The Gujarat High Court dismissed the petition. On appeal, the Supreme Court facilitated negotiations between the parties, resulting in an agreed protocol that incorporated vaccination, PPE, physical distancing, and the exclusive use of a designated Dokhma for COVID‑19 victims, thereby reconciling religious practices with public‑health imperatives. The Court held that the protocol satisfied both constitutional religious freedom and the state's duty to protect health, and consequently set aside the High Court judgment. The writ petition will be governed by the agreed statement, and the appeal was disposed of.
Issues considered
- Whether the Union Government's COVID‑19 dead‑body disposal guidelines infringe the right to freedom of religion under Article 25 for the Parsi Zoroastrian community.
- Whether the High Court was correct in dismissing the petition seeking to modify the guidelines.
- Whether a protocol can be crafted that accommodates Zoroastrian funeral rites while complying with public‑health requirements.
Legislation cited
- Constitution of Indias. Art.25
Subjects
Freedom of ReligionArticle 25COVID-19Funeral ritesParsiZoroastrianPublic healthStandard Operating ProcedureJudicial settlementConstitutional law
Judgment
[2022] 1 S.C.R. 631 631
THE SURAT PARSI PANCHAYAT BOARD AND ANOTHER A
v.
UNION OF INDIA AND OTHERS
(Civil Appeal No. 1067 of 2022)
FEBRUARY 4, 2022 B
[DR. DHANANJAYA Y CHANDRACHUD AND
SURYA KANT, JJ.]
Constitution of India: Art.25 – Freedom of religion –
Appellant-Surat Parsi Panchayat Board filed petition before the
C
High Court seeking, among other things, directions to allow the
performance of Dokhmenashini or funeral rights in the Dokhmas
belonging to the Parsi Zoroastrian community – The basis of the
grievance was that the protocols which were notified on 15 March
2020 by the Union Government during the onset of the Covid-19
pandemic setting out modalities for the disposal of dead bodies did D
not comport with the tenets of the Zoroastrian faith – High Court
dismissed the petition – Hence the instant appeal – Held: During
the course of the ensuing hearings, an effort was made to reach an
acceptable resolution of the issues raised – There is on the one
hand the fundamental right founded on Art.25 of the Constitution –
E
On the other hand, there are concerns based on the need to preserve
public health during the time of the pandemic – An agreed protocol
was placed before the Court which meets both the concerns reflected
above – A request was jointly made on behalf of the appellants as
well as the respondents that a final order in invitum be passed both
in the appeal and consequently, in the writ proceedings which F
became the subject matter of the judgment of the High Court – The
dispute amicably settled – The Court is assured that the protocol
and the Standard Operating Procedure comports with the tenets of
the Zoroastrian faith, while according with the need expressed by
the Union government for the maintenance of safety and hygiene
G
in the context of the Covid-19 pandemic – The protocol and the
Standard Operating Procedure are accepted and an order is passed
in terms of the statement which has been jointly placed on the record
of these proceedings – Judgment of High Court set aside – Writ
petition would be governed by the agreed statement which has been
placed on the record in these proceedings – Appeal disposed of. H
631
632 SUPREME COURT REPORTS [2022] 1 S.C.R.
A CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1067
of 2022.
From the Judgment and Order dated 23.07.2021 of the High Court
of Gujarat at Ahmedabad in R/Special Civil Application No.7585 of 2021.
Fali S. Nariman, Sr. Adv., Subhash Sharma, Devmalya Banerjee,
B Zerick Dastur, Rohan Sharma, Kartik Bhatnagar, Nicholas Choudhury,
Anmol, Ms. Palak Agrawal, Ms. Smriti Singh, M/s Karanjawala & Co.,
Advs. for the Appellants.
Tushar Mehta, SG, Gurmeet Singh Makker, Rajat Nair, Divyansh
H. Rathi, Ketan Paul, Bhuvan Kapoor, Ms. Deepanwita Priyanka, Tejas
C Patel, Ms. Meera Kaura, Advs. for the Respondents.
The following Order of the Court was passed :
ORDER
1. Leave granted.
D
2. This appeal arises from a judgment and order dated 23 July
2021 of a Division Bench of the High Court of Gujarat.
3. A petition under Article 226 of the Constitution was instituted
before the High Court by the Surat Parsi Panchayat Board seeking,
among other things, directions to allow the performance of Dokhmenashini
E or funeral rights in the Dokhmas belonging to the Parsi Zoroastrian
community. The basis of the grievance was that the protocols which
were notified on 15 March 2020 by the Union Government during the
onset of the Covid-19 pandemic setting out modalities for the disposal of
dead bodies do not comport with the tenets of the Zoroastrian faith. The
F High Court dismissed the petition.
4. Notice was issued on 6 December 2021after hearing Mr Fali S
Nariman, learned senior counsel for the appellants. The next order of
this Court dated 10 January 2022, is extracted below:
“1 Mr Fali S Nariman, learned Senior Counsel appearing on
G behalf of the petitioners, has submitted a written note
indicating the manner in which the funeral rites of Parsi
Zoroastrians who have died due to Covid-19 would be
carried out at the Towers of Silence. Learned Senior
Counsel submits that the proposed guidelines meet the
H concerns of the Union Government over public health and
THE SURAT PARSI PANCHAYAT BOARD AND ANOTHER v. UNION 633
OF INDIA AND OTHERS
safety while preserving the sanctity of the Zoroastrian faith. A
The guidelines which have been issued by the Union
Government in the Ministry of Health and Family Welfare
(Annexure P-1) do not take into account the concerns of
the Zoroastrian community in regard to the modalities
ordained for funeral rites.
B
2 We have requested Mr Tushar Mehta, learned Solicitor
General to render assistance.
3 Ms Deepanwita Priyanka, learned counsel, appears on
behalf of the State of Gujarat.
4 On the request of the learned Solicitor General, list the C
Special Leave Petition on 17 January 2022.”
5. During the course of the ensuing hearings, an effort was made
to reach an acceptable resolution of the issues raised. There is on the
one hand the fundamental right founded on Article 25 of the Constitution.
On the other hand there are concerns based on the need to preserve D
public health during the time of the pandemic. The Solicitor General
fairly agreed to intervene.
6. An agreed protocol has been placed before the Court which
meets both the concerns reflected above. The protocol reads thus:
“AGREED PROTOCOL & STANDARD OPERATING E
PROCEDURE FOR HANDLING DEAD BODIES OF
PARSI ZOROASTRIAN COVID-19 VICTIMS - AS
AGREED BETWEEN THE PETITIONERS ON THE ONE
HAND AND THE UNION OF INDIA – REPRESENTED
BY THE LEARNED SOLICITOR GENERAL OF INDIA
ON THE OTHER HAND. F
Under normal circumstances in the Zoroastrian religion, the
management of dead bodies strictly adheres to specific rules that
aim in separating the corpse from living persons while ensuring
the dignity and respect of the dead as well as for their living relatives.
Even during normal times, Zoroastrian ritual tradition already G
conforms to the basic rule required to be implemented during times
of COVID of separating the dead from the living, the family have
no physical contact with the dead member. Since for Parsi
Zoroastrians, the disposal of the dead in the Tower of Silence
(wherever located) is a religiously mandated obligation and duty. H
634 SUPREME COURT REPORTS [2022] 1 S.C.R.
A The nature and scale of the corona virus (COVID-19) pandemic,
has created challenges, and the Parsi community and their High
Priests have in consultation, worked out a standard Procedure
which they are willing to undertake to continue keeping in mind
the restrictions and regulations imposed by the Government of
India on all communities pertaining to those who have died due to
B
a COVID-19 infection during the pandemic.
1A. Dead bodies of the Parsi Zoroastrians who die of Covid 19
will be brought to the funeral parlour in the Tower of Silence
complex and will only be handled by the Nassasalars-
C (professional Corpse bearers who have been professionally
employed by the Panchayats). The corpse bearers are and
will continue to be fully vaccinated and their temperatures
duly recorded before every funeral and carrying out
procedures of handling dead bodies as per existing COVID
guidelines.
D
1B. Neither relatives nor friends are permitted nor will be
permitted to touch the dead body and it will be ensured that
they will always remain beyond 10 feet from the dead body.
2. The Nassasalars, at all times, while handling the dead body
E of the Parsi Zoroastrian COVID-19 victim will wear the
PPE kit, gloves, face shield and N – 95 mask and the Govt
of India regulations pertaining to dead bodies of COVID –
19 victims having been read and explained to them and they
will be cautioned to follow the directives of the Govt. of
India.
F
3. The body of the COVID-19 Parsi victim will be brought by
the Nassasalars to the Tower of Silence Complex from
mortuary or home in a body bag which will not be opened,
but as per existing Guidelines, the face of the deceased will
be allowed to be seen from a distance of at least 10 feet by
G
the family only by unzipping the face – covering of the body
bag.
4. The final funeral prayers i.e. the “GehSarna” (or Paidast)
ceremony (which is the recitation of the first Gatha handed
down by the Prophet Zarathushtra) over the dead body, is
H
THE SURAT PARSI PANCHAYAT BOARD AND ANOTHER v. UNION 635
OF INDIA AND OTHERS
and will be by two Parsi Zoroastrian Priests wearing N-95 A
masks and gloves, who will stand at a distance of 10 feet
from the dead body.
The final prayers (which last about 1 hour)will be completed
and upon its completion, the Nassasalars will carry the body
to the Dokhma (Tower of Silence) where no one except B
the professionally employed corpse bearers can enter.
As per Parsi religious traditions, no relative can touch, or
much less kiss the body and every person at the funeral
will perform hand hygiene after the funeral ceremony – a
distance of at least 10 feet from the body will always be C
maintained. The individuals who will transport the dead body
are the Parsi Nassasalars (the professional pallbearers) and
no one else. Normally two Nassasalars will carry the body
(in the body bag) to the Tower of Silence (Dokhma No.3)
in a bier.
D
5. Relatives attending the Gehsarna (Paidast) ceremony will
wear face masks and follow other guidelines as prescribed
by the Government of India and will sit 10 feet away from
the dead body and only such number of family members
will be permitted to attend the funeral as per the applicable
guidelines. E
6. One Dokhma No.3 has been set asi de for Covid victims
alone and used for performing religious ceremonies for dead
bodies of Parsis COVID-19 victims. This Dokhma No. 3
will not be used for non-Covid-19 dead bodies.
F
7. Only Dokhma No.3 (in the Tower of Silence) will be used
for dead bodies of Parsi Covid victims. And non-Covid
victims’ bodies will be placed in other Dokhmas i.e Dokhma
No.1 and Dokhma No.2. Since the principal mode of disposal
at the Tower of Silence is through strong and powerful rays
of the Sun, and hence to deal with the problem of birds of G
prey, the Petitioner undertakes to install as soon as possible,
a metallic bird net over Dokhma-No 3 – which is exclusively
reserved for the dead Parsi COVID-19 victims; this will
eliminate contact with birds and animals and will avoid any
intrusion by vultures. Hence, there will be no exposure of
H
636 SUPREME COURT REPORTS [2022] 1 S.C.R.
A the body to birds etc. once the metallic net gets installed
over Dokhma-No 3.
8. Religious rituals such as reading from religious scripts,
sprinkling holy water and any other last rites that does not
require touching of the body are allowed.
B
9. After each ceremony, the entire funeral area/parlour will
be washed, sprayed and disinfected. All PPE suits, masks
and face shields will be disposed off and a new set will be
used for each COVID-19 victim’s funeral ceremony.
C It is requested that a final Order in invitum be passed in
the above SLP No: 17130/2021 and in Writ Petition No:7585
of 2021 before the High Court of Gujarat in the above
terms.”
7. A request has been jointly made on behalf of the appellants as
D well as the respondents that a final order in invitum be passed both in
the appeal and consequently, in the writ proceedings which became the
subject matter of the judgment of the High Court.
8. The dispute has been amicably settled. The Court has been
assured that the protocol and the Standard Operating Procedure
E comports with the tenets of the Zoroastrian faith, while according with
the need expressed by the Union government for the maintenance of
safety and hygiene in the context of the Covid-19 pandemic.
9. We appreciate the fair stand which has been adopted by both
the sides in ensuring that the issues which have been raised before the
F Gujarat High Court and, in continuation, in the proceedings before this
Court have been amicably resolved. The dialogic process of judicial
review can, as this case reflects, provide effective solutions which provide
acceptable outcomes which promote harmony. The protocol and the
Standard Operating Procedure are accepted and an order is passed in
terms of the statement which has been jointly placed on the record of
G these proceedings.
10. The judgment of the Division Bench of the High Court of
Gujarat dated 23 July 2021 shall stand set aside. The writ petition shall
be governed by the agreed statement which has been placed on the
record in these proceedings.
H
THE SURAT PARSI PANCHAYAT BOARD AND ANOTHER v. UNION 637
OF INDIA AND OTHERS
11. The appeal is disposed of in the above terms. A
12. Pending applications, if any, stand disposed of.
Devika Gujral Appeal disposed of.
B
C
D
E
F
G
H
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