Court: Open-air pyre cremation 'ban' was discriminatory to Hindus after August 2021

FOR some five months, the Government’s covid19 guidelines on open-air pyre cremations were unconstitutional and became discriminatory against the Hindu community, a High Court judge has said in a written decision.

On February 27, Justice Avason Quinlan-Williams provided her written ruling on a lawsuit filed by the daughter of a covid19 victim who had challenged the 2020 guidelines for funeral homes at the height of the pandemic in 2020.

In the decision, Quinlan-Williams held that after considering all the evidence, she found as a fact that the guidelines for hospital staff and funeral agencies “were made to be and were treated to be prohibitions on open-air pyre cremations.”

She also held that the police, at the time, held the belief they were prohibited from permitting open-air pyre cremations.

“The court was satisfied that by August 2021, any ban on open-air pyre cremations was no longer proportionate and would have been unconstitutional,” she said as she ruled that Cindy Ann Ramsaroop-Persad’s rights to protection of the law were breached.

She said while the Health Ministry and the chief medical officer, when preparing and implementing the guidelines, were “good intentioned,” the effect of the guidelines after August 2021 became discriminatory against the Hindu community.

“There was no longer any justifiable reason for prohibiting open-air pyre cremations.” She said after the CMO’s scientific justification for the ban was debunked, it could not be said that keeping the guidelines beyond August 2021 was for the general welfare of society.

She said the “ban” on open-air pyre cremations became irrational by August 2021.

Although Ramsaroop-Persad sought damages for the breaches, the judge declined, saying declarations were sufficient to meet the unconstitutionality found in the case.

She also held that although the guidelines were not law, nor were they contained in the covid19 regulations or public health ordinance, they had the effect of prohibiting open-air pyre cremations.

“The guideline did not contain advisory terms…(but) communicated a mandatory instruction.”

She also said while she appreciated that the decisions behind the guidelines were made in April 2020, when the science was new and evolving, the CMO and the Health Minister “remained steadfast in their position taken in early 2020 that open-air pyre cremations should not be permitted.”

She said after the public outcry from various sectors, including the Hindu community through the Sanatan Dharma Maha Sabha (SDMS), the Government could have publicly said the guidelines were not a “ban.” Instead, she said, Ramsaroop-Persad was given a “convoluted response.”

She said it was not until January 13, 2022, that the Government said it had no objection to the grant of permits for such cremations. This decision was taken after a meeting with the Attorney General and the SDMS.

“Whether a less intrusive measure could have been used? The evidence points to a conditional yes. The condition is the date; after a certain date, less intrusive measures should have been used.

“It was no longer necessary to ban open-air pyre cremations.”

Although she held that before August 2021, the “policy restrictions” on open-air pyre cremations were balanced because of the paucity of information on covid19, after that date, it was no longer proportionate.

“While the ban may have initially had a legitimate aim, after August 2021, it was no longer rationally connected to the objective of reducing covid19 transmission.

“...The guidelines should have been an advisory policy.”

The judge pointed to the expert evidence from doctors, specialists and pundits and was also critical of the CMO and the Attorney General.

She also added, “The unwarranted ban on open-air pyre restriction had the negative consequence of depriving the claimant the opportunity to fulfil her father’s dying wish and give a proper send-off under their beliefs and practises.

“They believed that an open-air pyre cremation is integral in the departure of the soul from the earth.

“According to the pundit, if the cremation is not done, Hindus believe that the soul will not find its restful place in the afterlife and could come back to haunt those who failed to perform their dharmic duty of cremation under the holy scriptural injunctions.”

She also said had it not been for the ban on these types of cremations, there would have been less of a strain on the nation’s hospital mortuaries, funeral agencies and families who had to endure additional costs of prolonged storage of the corpse.

“Based on the evidence, this court finds that the policy ban, after August 2021, failed to strike any balance at all, let alone a fair balance between the rights of the individual and the interests of the community.

“There was no real risk associated with conducting open-air pyre cremations but the consequences of restricting such were dire on the public, more so the Hindu community.

“...Other religions and persons were allowed to dispose of their deceased in a manner that was pleasing and comforting to them.

“The imposition of the ban left the Hindu community in a state of anguish, as they were unable to give their loved ones a proper send-off. Therefore, imposing a total ban on open-air pyre cremations with no real basis to do so did not justify the difference in treatment.

“The court finds that the claimant, at the time of her father’s death, was unequally treated by being deprived of the opportunity to cremate her father via open-air pyre while others were allowed to satisfactorily send off their loved ones.”

Ramsaroop-Persad filed the lawsuit on July 31, 2021. Silochan Ramsaroop, 77, died at the Couva Hospital and Multi Training Facility five days earlier. His death certificate said he died of covid19 pneumonia, covid19 infection, hypertension, and Type II diabetes.

The police initially gave the family a permit for his final rites at Waterloo, but this was later rescinded.

The family was told it had to be revoked because of the ban on open-air pyre cremations for covid19 deaths. Open-air pyre cremations were allowed for those who did not die of covid19.

He was eventually cremated at a funeral home but Ramsaroop-Persad said her father, a devout Hindu, wanted to be cremated at the Waterloo site and his dying wish was for the rituals for Hindu cremations when he died.

Although Quinlan-Williams ruled that Ramsaroop-Persad’s rights to protection of the law were infringed, she said her rights to freedom of religious belief, in July 2021, when her father died, were not breached because of the restraints caused by the emergency health situation at the time.

Initially, Ramsaroop-Persad sought an injunction, which was dismissed. She appealed and the matter was sent back to Quinlan-Williams to consider but it was later withdrawn after she chose to cremate her father.

Ramsaroop-Persad was represented by Anand Ramlogan, SC, Renuka Rambhajan, Jayanti Lutchmedial, Vishaal Siewsaran, Jesse Rampersad, Natasha Bisram and Cheyenne Lugo. The State was represented by Fyard Hosein, SC, Rishi Dass, SC, Tenille Ramkissoon, Janine Joseph, Anissa Ali and Sarah Sinanan.