Maha Sabha challenges open-pyre cremation ban for covid19 victims

THE SANATAN Dharma Maha Sabha (SDMS) has received the court’s permission to advance a judicial review claim challenging the lawfulness of the Government’s policy prohibiting open-pyre cremations even for covid19 victims who were Hindus.

The Maha Sabha’s claim, filed on Thursday, is separate from a similar challenge by the daughter of a covid19 victim.

On Thursday, Justice Nadia Kangaloo granted the Hindu organisation leave to pursue its legal action against the Minister of Health.

She has set January 5 for the first hearing.

In its leave application, the SDMS said, as a religious institution, it has acted responsibly by holding consultations with the minister to arrive at a “proportionate approach” to open-pyre cremations to balance the risk of transmission of covid19 while addressing the “prohibitive and unmanageable costs of indoor cremations” for Hindu families.

It said it has offered several suggestions to the ministry but there has been no response.

It argued, “An open-pyre cremation is significantly less costly than indoor cremations, and this would have primarily redounded to the benefit of the Hindu community whose religious practice includes cremating as soon as possible in an open pyre.”

The Maha Sabha, which provided evidence from Dharmacharya (spiritual head of the SDMS) Dr Rampersad Parasram, its acting secretary general Vijay Maharaj and another pundit, detailed some of the measures suggested to the ministry which could allow Hindus to cremate their covid19 dead according to religious practices.

These included: keeping the body in a body bag in a closed casket; only allowing fewer than five people to conduct rituals; and not allowing anyone in the immediate vicinity of pyres during cremations.

The Maha Sabha intends to argue that the ministry has acted “disproportionately, unreasonably, and unfairly by continuing its policy of completely prohibiting open-pyre cremations of persons that are covid19-positive at the time of death.”

In its application, the SDMS wants a declaration that the policy is unlawful and an order quashing it, while sending it back to the minister to reconsider the SDMS's recommendations.

Maharaj and pundit Omardath Navin Maharaj outlined some of the hardship faced by members whose families died from covid19. Parasram, a former head of the St Ann’s Psychiatric Hospital, spoke of the need of bereaved families for closure through performing their traditional final rights.

“When loved ones are unable to cremate their kin in the traditional religious way, it may have both short- and long-term consequences such as prolonged grief.

“I am of the belief that health policy needs to be sensitive to the cultural and religious norms within society and should seriously consider the importance and tradition of open-pyre cremations to the Hindu community,” he said.

The ban on open-pyre cremations is contained in guidelines for hospital staff and funeral agencies.

The Maha Sabha claims says at no time was it consulted.

It also said the policy was implemented before the availability and widespread use of vaccinations and went against the general message from both the minister and health authorities worldwide that the population had to learn to live with the virus, as societies cannot continue to exist in a perpetual state of lockdown and restrictions.

It also pointed out that indoor cremations cost some $8,000-$10,000 more than an open-pyre cremation and this was causing serious financial difficulties for lower-income families and those who had lost multiple members from covid19.

The application referred to several letters written to the minister and the Chief Medical Officer on behalf of the SDMS, saying only one had had a response. It said the Maha Sabha was assured the ministry would reconsider its policy and provide the scientific basis for the absolute prohibition.

It further noted that the SDMS has since then received communication from all Hindu groups in TT asking for the total ban to be lifted.

In August, with an ease in pandemic restrictions and the detection of the delta variant, the Maha Sabha said it expected new cases and deaths and several Hindu groups issued a joint press release calling for a lifting of the ban.

“The prohibition is culturally and religiously insensitive. It is harsh, oppressive, and disproportionate…This prohibition was enacted without consultation and is directly repugnant to the collective conscience and identity of the Hindu community.”

The claim said the police were also approached to consider, on their own, any measure to reduce the risks and allow open-pyre cremations for covid19 fatalities.

In November, the police responded that they were bound by the ministry’s guidelines and hence could not allow open-pyre cremations.

The SDMS also said such cremations were a prominent and deeply entrenched practice in the Hindu religion and constituted a foundational religious observance, as Hindus believe open-pyre cremations are the only acceptable form of cremation and noted there were doctrinal texts and learning to support this view.

“…it is a fundamental principle of Hinduism that a live-fire be present in almost all Hindu ceremonies and the cremation is no different. In fact, this is probably one of the most elaborate uses of fire in all Hindu practices which are accompanied by a host of other intricate rituals at the time of death during an open-pyre cremation.”

It argued that the ban "restricted and/or curtailed the constitutional right to practise Hinduism.”

The application said the Maha Sabha did not accept that the object of the ban was sufficiently important to justify limiting the rights of Hindus to express and practise their religious beliefs and freedoms.

“General words cannot be used to limit or fetter constitutional rights and freedoms... These guidelines have not been subjected to parliamentary scrutiny and therefore violate the constitutional principle of parliamentary accountability/ scrutiny,” the application said.

It also added that the text of the public health ordinance and guidelines had to be read and interpreted with constitutional principles and general words of the statute could not be used to formulate guidelines with no scrutiny “in order to prohibit, limit, curtail or restrict constitutional rights and freedoms.”

The Maha Sabha is represented by attorneys Dinesh Rambally, Kiel Tacklalsingh, Stefan Ramkissoon and Rhea Khan.