Ghai v Newcastle City Council in the Court of Appeal.
In the UK, the Court of Appeal has reserved judgment in the case of Davender Ghai (pictured left, centre), an elderly Hindu man who is challenging a decision of Newcastle City Council refusing permission for the construction of a site on which traditional Hindu funeral ceremonies could be celebrated. Such ceremonies involve the cremation of the deceased’s remains on an open-air funeral pyre, which is set alight by the eldest son or other appropriate relative. Mr. Ghai explains the ritual, which includes the breaking of the deceased’s skull, here. In 2006, Mr. Ghai was involved in the illegal Northumberland funeral rites of Rajpal Mehat, which included an open air pyre. The BBC reports with footage of the event here. The local police did not intervene and the Crown Prosecution Service determined that prosecution would not be in the public interest.The Council argues that the burning of human remains other than in a crematorium is prohibited by legislation. Mr. Ghai was unsuccessful in the High Court. The judgment of Cranston J is here and a shorter case note is available here.
Mr. Ghai insists that cremation is at the heart of a dignified Hindu death. In a statement he explained that “I want to clarify and enforce the law, not disrespect it. If natural cremations can be performed with absolute safety and consideration for others, then quite simply, why shouldn’t they be allowed? Of course, this is a sensitive issue and I have tried to present my case in the most dignified and respectful way I can. I understand some people feel uneasy about faith minorities asking for special rights but I am not trying to be divisive or offend anyone. I am the first to insist that natural cremations should be performed with absolute safety, respect and privacy. I have tried to live with dignity my entire life, now I now yearn to die and be cremated with dignity too. I want my soul to arise from the flames like the mythical phoenix, not be incinerated in an industrial furnace.” You can read more about Mr. Ghai’s campaign on the website of the Anglo-Asian Friendship Society and in this interview with the Independent.
This case, like that of the Jewish Free School (blogged by Colin here) has exposed once more the plural nature of British religious identities. Mr. Ghai’s argument in the High Court hinged on ideas of Hindu orthodoxy and authenticity. As such, his case has provoked division among British Hindus over the question of the centrality of the funeral pyre to Hinduism. The case has provided an opportunity to explore the processes by which British adherents to Hinduism have modified and adapted religious practices. For instance, the BBC points out that a number of British rivers have been consecrated, so that when a person’s ashes are placed in these rivers it is as if they were placed in the holy Ganges. Importantly for this case, many British Hindu families, rather than cremating relatives in the open air, transport their remains to India for cremation or accept cremation in an unmodified public crematorium. This article in the Guardian argues that Mr. Ghai, in pressing his case for more ‘traditional’ cremation facilities, is playing on a division between determined orthodox Hindus and those who favour a practical and flexible approach to Hindu life in Britain.
In any event, it appears that the Court of Appeal is determined to avoid these issues and has, in effect, chosen the path of least resistance. The Times of London reports that the Article 9 ECHR arguments advanced in the High Court have fallen by the wayside and that the Court of Appeal insists that the case is a simple matter of statutory construction. The Times indicates that Mr Ghai is arguing for the recognition and regulation of a particular form of roofless (whether fully or partially open) cremation structure which could fall within the definition of crematorium in the Cremation Act, 1902. The Act defines crematorium as any building fitted with appliances for the burning of human remains but ‘[b]uilding’ is not defined. The Ministry of Justice argues that ‘building’ refers to an entirely enclosed structure; with four walls and a roof; pushing a purposive interpretation of ‘building’ which would understand that the building is necessary to protect public decorum and decency. The Times reports, however, that ‘the judges countered with examples of other types of buildings. Lord Justice Etherton said: “What about the houses typical in southern Spain, houses built around a large courtyard. Is there any sense that that would not be a building?” Lord Justice Moore-Bick noted that “it’s common to have animal pens that have part of them open to the sky. If you say to someone ‘Is that a building over there?’ they will say yes.”