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The Supreme Court today delivered a split verdict in the case relating to the burial of a Christian pastor in Chhattisgarh's Bastar, but did not refer the matter to a larger bench because the body has been in the morgue for nearly three weeks now. The court directed that the body of Subhash Baghel be buried at a Christian graveyard 20 km away and asked the state administration to provide all support.
Subhash Baghel's son Ramesh had approached the top court after some neighbours stopped them from burying Subhash's body in the village burial ground because they had converted to Christianity. The High Court had earlier said the Baghels' insistence on burial at the village graveyard may lead to a law and order situation. The bench of Justice BV Nagarathna and Justice Satish Chandra Sharma had earlier said it was "pained" that a person had to come to the Supreme Court for his father's burial.
Ramesh Baghel's lawyer Colin Gonsalves had argued that the family members were buried in the village burial ground even though they had converted. "I don't want to go outside the village... I don't want to be treated like an untouchable just because I converted." Solicitor General Tushar Mehta opposed this and said this was the beginning of a "movement" that may lead to a disturbance between tribal Hindus and tribal Christians. "Just 20 km away there is a Christian burial ground. This ground is a Hindu tribal burial ground," he said.
Justice Nagarathna today said there were two judgments and went on to deliver hers. "It is said that death is a great leveller and we need to remind ourselves of this. This death has led to divisiveness among villagers on the right to burial. The appellant says there is discrimination and prejudice," she said. Justice Nagarathna noted that the High Court accepted a suggestion that displaced the practices being followed in the village. "The death of the person has given (way) to disahrmony since it was not solved by the village panchayat. Panchayat has been taking sides which led to the case in high court and Supreme Court."
She pointed to the police affidavit that says a Christian convert cannot be allowed burial on the village grounds. "This is unfortunate and violates Articles 21 and 14 and furthers discrimination on the grounds of religion. The State cannot deny equality before the law. How could ASP Bastar give such an affidavit and what was the authority? it betrays the sublime principle of secularism."
Pulling up the village panchayat, she said its attitude gave rise to hostile discrimination. "The gram panchayat failed in its duty to provide burial which led to social ostracisation of appellant and his family." Justice Nagarathna directed that the burial be done on Baghels' private agricultural land. She also said the State must earmark a graveyard for Christians across all states within two months. But, Justice Sharma disagreed with this.
Justice Sharma said he was "unable to persuade myself to the directions issued". "The fulcrum seems to boil down to whether fundamental rights to conduct religious burial ceremonies be extended to other places earmarked for other faiths in a blanket manner," he said.
He added that the designated burial ground is in Karakwal, just 20 km away. "There is no reason why there should be an unqualified right to burial. Sweeping and illusionary rights can lead to public order disruption. Maintenance of public order is in the larger interest of society," Justice Sharma said, adding that the state administration must provide transport and security for the burial in the grounds 20 km from the village.
Justice Nagarathna then said, "We do not wish to refer the matter to a three-judge bench since the body is in the morgue since Jan 7. We issue these directions under Article 142: 1) The burial shall take place in the burial ground of Karakwal 2) All logistic support to be given. These directions are issues to allay the sufferings of the family of the deceased. Appeal disposed off."