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[This is a guest post by Divyansh Nautiyal and Mokshith Bhyri.]
In a verdict on the burial rights of a scheduled caste Christian-convert, the Supreme Court resolved an immediate dispute but left deeper issues of religious discrimination and social ostracization unaddressed. The case pertained to the denial of the right to burial to the petitioner’s father (the deceased), in the graveyard of their native village. The petitioner in the case is Ramesh Bhagel – a third-generation Christian belonging to the Mahra caste.
Following the death of the petitioner’s father – Subhash Bhagel, the village of Chhindwada erupted in a controversy when the tribals denied him the right to burial in the village’s graveyard which they exclusively claimed. As a result, the deceased’s body remained unburied for three weeks, forcing his son to approach the Chhattisgarh High Court. However, the High Court dismissed his plea and denied him access to the common burial ground. He was directed to conduct the burial rites at the place designated for Christians in Karkapal village, despite it being 25 kms away.
In a divided bench, Justice B.V. Nagarathna allowed the appellant to bury his father in his private property, recognizing the deep-seated discrimination and social ostracization faced by Christian converts. In contrast, Justice Satish Chandra Sharma permitted burial only at the area designated for Christians in the village of Karkapal, which was 20-25 kms away. Considering that the deceased’s body had remained in the mortuary for three weeks, the bench collectively issued a direction that the burial should take place only at the designated site for Christians.
Widespread Burial Denials – A Persistent and Recurring Reality
The social setting of the village plays an important factor in this case. Chhindwada is a tribal village located in the Tehsil Darbha of Bastar district in the southern region of Chhattisgarh. It has a population of approximately 6,450 individuals – 6,000 Adivasis, while the remaining 450 belong to the Mahra community, a scheduled caste. Among the Mahra community, around 100 individuals are Christian, while the rest are Hindus.
From a prima facie reading of the present case, this may appear to be an isolated instance of burial rights being denied to a religious minority. However, a closer scrutiny demonstrates that this is not an exceptional case. Rather it is one of the many in a deeply entrenched pattern of religious ostracization and stigmatization of Christian converts. This systematic denial of burial rights is a recurring event, persisting across multiple villages in Chhattisgarh, with a rough estimation of over 350 such incidents related to burial conflicts in the Bastar District. These exclusionary practices have, in fact, been reinforced, by weaponizing the state institutions and legislative enactments against minorities.
A fact-finding report by the All-India People’s Forum reveals this reality across multiple tribal-dominant districts of Chhattisgarh. Testimonies of several Christians in Bastar district reveal systematic attempts to persecute Christian minorities and foment communal divisions in Adivasi villages. These efforts are carried out through legislations like the Chhattisgarh Gram Panchayat Act, 1993, whose powers have been invoked and misused for such ends. A key provision, Section 129C, empowers the Gram Sabha to pass binding resolutions under the pretext of preserving traditions, cultural identity, and community resources. However, at times, these powers have been wielded to exclude and marginalize religious minorities.
Being tribal dominant areas, they fall within the ambit of the Fifth Schedule. The provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996 are applicable to such areas which confer extensive powers upon the Gram Sabha over a broad range of matters, including the regulation of customary and religious practices (Section 4(d)). Exercising these powers, the Chhindwada Gram Sabha passed an unconstitutional 13-point resolution prohibiting access to common village burial grounds for those who had converted to other religions and abandoned the dominant tribal traditions such as the Rudi Parampara. The ‘transgressors’ were warned by threats of “social non-cooperation” and even monetary fines, in some cases.Personal testimonies documented by several media houses highlight how their religious beliefs, labelled as transgressions, have led to violent and threatening attacks. This has also included persecution in the form of forceful re-conversions, often termed as the “ghar wapsi” campaign.
Citing the dangers associated with such persistent misuse of powers, the Chhattisgarh High Court in its interim order passed in Chhattisgarh Christian Forum v. State of Chhattisgarh, quite eloquently held that “a resolution u/s 129C of Chhattisgarh Gram Panchayat Act shall not be allowed to come in the way of the fundamental right to preach and propagate religion.” These catenae of exclusionary practices, aimed at excluding religious converts from access to a common burial ground, on the sole basis of religious identity, directly offend Article 15(2)(b), which prohibits restriction on access to public places maintained wholly or partly out of state funds, or dedicated to the use of the general public. While caste and religion-based segregation in burial spaces may persist as a social reality in our country, the failure of the State, acting through the Gram Panchayat to allocate a designated burial space for Christian converts constitutes a clear abdication of that duty, and adds yet another layer of infringement under Article 15(2)(b). Moreover, oral testimonies establish that the petitioner’s ancestors had long-standing access to the same burial ground, underscoring its communal character. Denying the petitioner similar access now, solely due to his religious conversion, violates Article 15(2)(b), which prohibits exclusion from public spaces on the grounds of religion, particularly where such access has historically been exercised without distinction.
The Split Verdict and its Impact on Constitutional and Religious Rights
Turning a blind eye
Despite the discriminatory practices noted above, the operative ratio order doesn’t take them into account and negates the petitioners’ prayers. Justice SC Sharma’s short order, prima facie upholds the High Court’s reasoning that allowing the right to burial may cause unrest and disharmony amongst the public at large.
However, there has been an inconsistency in the Chhattisgarh High Court’s stance on burial conflicts which went unaddressed before the Supreme Court. The Chhattisgarh High Court which denied Ramesh Bhagel access to the common burial ground to perform his father’s last rites with dignity, had a diametrically opposite stance in another ruling only 6 months before. In a nearly identical dispute over burial rights of another Christian convert in the same Bastar district, the High Court ruled that the petitioner had the fundamental right under Article 21 of the Constitution to provide a dignified burial to his father in their private land This demonstrates a constitutionally incoherent application of the doctrine of stare decisis. Instead of engaging with sound constitutional reasoning, the verdict perpetuates a constitutionalism of convenience, favouring expediency over principled adjudication.
In Sossai v. Union of India, the Supreme Court addressed a similar issue concerning the “denial” of Scheduled Caste (SC) reservations to Christian converts. A key argument advanced was that “denying benefits” to SC Christian converts based on religion coerces them to re-convert to Hinduism, to avail the benefit of reservations (Para 3 in Soosai). Back then, denial of such reservation benefits, were argued to be violative of Article 25(1) as it restricts the individual’s substantive freedom of conscience and the right to profess, practice, and propagate religion. While the Court had dismissed this argument for lack of material evidence of actual discrimination (Para 8 in Sossai), the present case is backed with extensive evidence of state-wide social ostracization and discrimination being meted against Christian converts, thereby starkly illustrating such systemic exclusion. The personal testimonies identified above reflect how this “arbitrary discrimination” affects both their social existence and livelihood. Yet, Justice Sharma’s reasoning overlooks this critical fundamental rights violation, backed with eye-opening evidence of discrimination, thereby disregarding the gravity of religious ostracization.
The justification for the flawed reasoning emanates from the narrower question that was framed by Justice Sharma – “whether the fundamental right to conduct last rites as per ones’ own specific religion or custom would extend to include the place where such ceremonies are scheduled to take place, and in the context of the present lis, the right to choose the place of burial in a blanket & unilateral manner?” Instead, the substantive question should have been “whether the Gram Panchayat could change the character of a burial ground to the exclusion of a community”, which is foregrounded in taking into account the critical concern of “exclusion” of religious converts. Due to such a narrower question being framed, Justice Sharma doesn’t even peruse over the oral testimonies which would have ipso facto revealed the arbitrary and unreasonable nature of denying the petitioner access to the common burial ground. Arbitrary because there exists no intelligible differentia to justify excluding Christian converts from a space historically used by all communities, and unreasonable as it lacks any rational nexus to public order or health, thereby failing the equality test under Article 14..
Justice Nagarathna’s Harmonious and Pragmatic Reasoning
Justice Nagarathna in her part does not shy away from addressing the sensitive nature of the controversy. She relies on the evidence before the court – the depositions made by the ASP Bastar, which prove without a doubt that the common burial ground was used to bury the petitioner’s ancestors who were also Christian converts.
She relies on the finding that the Gram Sabha had given ‘oral’ permission to allow such burials in the past. By adopting a harmonious and purposive reading, her judgement holds that the approval by the panchayat need not always be in writing. She correctly holds that in the absence of any evidence from the state to show why the petitioner should be treated differently, there is no reasonable differentia to prevent them from using the common burial ground (Para 22.11 of Justice Nagarathna’s judgment). Thereby, the present case not only amounts to a violation of Right to Equality under Article 14 but is also a case of hostile discrimination on the explicit grounds of religion which violates Article 15. Moreover, she flags the abdication of duty on behalf of the Gram Sabha in providing a burial place to Christian converts in the village.
This abdication of duty becomes stark as Rule 5 of the Chhattisgarh Gram Panchayat (Regulating Places for Disposal of Dead Bodies, Carcasses, and Other Offensive Matter) Rules, 1999, particularly confers discretionary powers on the Gram Sabha to determine and approve burial grounds. Instead of utilising these powers to provide a burial ground for Christians, it, in fact, is weaponised against them. Moreover, the restriction of public order under Article 25 is further used as a double-edged sword against the religious minorities, preventing them from exercising their religious rights.
Justice Nagarathna quite eloquently identifies this lacuna. Rather than imposing an unreasonable burden on the petitioner to travel 25 kilometres, she rules that he cannot be penalized for the Gram Sabha’s inaction. As a son seeking the dignified last rites for his father, he should not bear the consequences of the state’s failure.
The Proportionality Standard
An alternative relief sought by the petitioner was to allow the burial on his private land within Chhindwada village itself, an option that was denied by the Gram Sabha and later upheld by the High Court on unsubstantiated grounds of public order. Justice Sharma, too, summarily rejects this relief, invoking public health concerns and citing the WHO’s directive alongside public order justifications under Article 25(2). However, his reasoning remains fundamentally flawed on two grounds. First, he fails to establish how concerns over public health legitimately outweigh the religious freedom of minorities, particularly when the state has abdicated its duty to provide an alternative burial site. Second, his approach disregards the principle that an individual’s right to use private property for religious purposes, protected under Article 300A.
Right to property, while not a fundamental right, requires that any deprivation be through a procedure established by law. If no clear public health justification is provided, then such a restriction appears arbitrary. Rather, a well-reasoned justification would be to test these equally competing claims by the yardstick of the four-pronged proportionality test– i) legitimate state aim; ii) rational nexus between the impugned measures and the aim; iii) the impugned measure is the least restrictive method of achieving the aim (the ‘necessity’ prong); and iv) a balance between the extent to which rights are infringed and the overall public benefit (the ‘strict proportionality’ prong) (Para 53 of Modern Dental College).
Applying this to the facts at hand, while allocating dedicated places as burials in a village is a legitimate state aim in terms of public health, denying and apportioning it explicitly on religious lines does not have any rationale nexus with public health aim. Moreover, even if a piece of land has not been dedicated to Christian converts, which was anyways the legitimate state duty that has now been abdicated, the least restrictive alternative was at least to allow the burial and last rites to be conducted on an indivudal’s own private land which by all means upholds a right balance between the dignitarian exercise of the claimants’ religious rights, as well as the legitimate state aim. Though Justice Nagarathna does not explicitly invoke proportionality, but the manner in which she allows the usage of private land for burial is based on the similar logic of ensuring “right to dignity in death” is upheld.
Conclusion
Rajeev Bhargava, a noted political theorist has explained that the India model of secularism is based on the idea of a principled distance between the state and religion. It further emphasises that any state intervention in religious matters should be aimed at performing a counter-majoritarian function of safeguarding the rights of religious minorities against religious hegemony. However, the present case deviates from this principle and reflects a pattern of exclusionary treatment against Christian converts. By continuing to portray them as “outsiders”, this verdict perpetuates alienation and insecurity among religious minorities instead of furthering religious solidarity and universal brotherhood – the foundational pillars of the ideal “Sarva Dharma Sambhava”. Justice Nagarathna’s counter-majoritarian approach captures this lacuna and rightfully imposes the duty on the state to designate a burial area for Christians across the state. However, the operative verdict shaped by Justice Sharma’s reasoning, overlooks the systemic religious discrimination and ostracization faced by converts across Chhattisgarh. As a result, the verdict becomes constitutionally untenable and incompatible with the substantive exercise of fundamental rights of religious minorities in India.
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