So held Mr Justice Leggatt in a very carefully considered ex tempore judgment given yesterday afternoon (1st April) in the Administrative court sitting in Birmingham.
“And when he dies…and when they place him on the fire,
Then he is born again out of the fire, and the fire consumes only his body.”
Satapatha Brahmana II.2.4.8
‟He who does not obtain funeral rites, is condemned to perpetually remain a preta‟
Garuda Purana II 9.47-49
The facts
The Claimant, a Hindu prisoner from Tamworth serving a default sentence for non-payment of a confiscation order at HMP Oakwood, Wolverhampton issued judicial review proceedings against the Secretary of State for Justice and G4S challenging in part the prison’s decision to refuse to allow him to attend and participate as Chief Mourner in the funeral of his 91 year old father, himself a lifelong devout Hindu who passed away with the sole instruction that his son faithfully perform the last rites. The urgency of the case reflected the looming end of the forty day mourning period during which the cremation must take place under Hindu last rites.
The Claimant had applied for permission to be released on temporary licence to allow him to attend the funeral. The request was denied on the basis that he posed a low risk of absconding. However the prison agreed to allow him to attend the crematorium on the condition that he would be accompanied by two warders and remain handcuffed to one for the duration. Specifically the Claimant would be prohibited from participating in any of the Hindu last rites rituals. The prison’s assessment was in stark contrast to the Claimant’s external probation officer who had approved his application for release on temporary licence.
When the Claimant’s wife pleaded with the Christian chaplain to permit him to attend free from handcuffs, but still in the company of warders, so that he could undertake the rituals as Chief Mourner the chaplain retorted that in all his years working for the prison he had never known an escorted leave to be permitted as requested and that he would eat his hat if that were to happen (Hmmm!) The Claimant’s wife asked if the chaplain had taken the advice of a Hindu colleague or if there was one he could/would speak to. The answer to both questions was no.
On 27 March the Claimant issued his claim using the services of the excellent Stuart Luke of Bhatia Best solicitors. In support of his application the Claimant obtained at great speed expert evidence on Hindu last rites.
On the day before the hearing the Hindu Council (UK) wrote to the prison to support the claim on the basis that it could not be in dispute that the eldest son performs the funeral rites and that he must be allowed to do so with dignity. The Council queried how the Christian chaplain was able to understand the unique sensitivities of Hindu last rites.
The expert evidence
The expert reminded the Court that the concept of ‘Good Death’ (su myrtu) is a central paradigm within Hindu religious traditions, without which, the soul is unable to liberate from mortal remains and proceed upon the intended transcendental ‘journey’ towards spiritual reincarnation.
The raison d’être of Hindu last rites (antyeshti sanskara) is to facilitate a ‘Good Death’. Full proper performance (orthopraxy) of the sacramental ritual framework is designed to liberate the soul and ultimately enable reincarnation. Accordingly, “it is commonly held that… death does not occur at the cessation of physiological functioning, but during the last rites.” This sacramental ritual framework encompasses a prolonged time period, including prior to cremation, the cremation itself and post-cremation rites (sraddha rituals extending for 1 lunar year).
A ‘Chief Mourner’ carries a sacred duty of immense responsibility towards the deceased, performing a ritual role without direct comparison in the Abrahamic religious traditions. A profound ritual nexus binds the Chief Mourner and deceased together throughout this last rites sacrament, as the Chief Mourner alone is eligible to perform the designated last rites the deceased requires to attain a ‘Good Death’. The Chief Mourner is no less than the deceased’s ritual conduit between life and afterlife, between ‘Good Death’ and ‘Bad Death’ (akal myrtu).
From antiquity to post-modernity, the uninterrupted Hindu religious tradition dictates that only one’s eldest son is eligible to act as Chief Mourner. Without question, last rites are not deemed as properly performed if undertaken by a person other one’s eldest son; nor can these sacramental duties be delegated nor shared with a third party.
Thus, full proper performance of the last rites sacrament is simultaneously a core religious duty for both father and son; without which, a father’s soul fails to attain liberation and a son fundamentally fails in his primary, sacred karmic role in life.
He confirmed that the Chief Mourner’s sacramental ritual duties are universally respected by all sects within Hindu religious traditions – and extensive research by one of the Secretary of State’s own expert Dr Shirley Firth confirms the same of Hindus living in the UK. :
He went on to confirm that the rituals described by the Claimant in his witness statement were indeed essential, universal features of the Hindu last rites sacrament and that his concerns were well founded. In particular the expert focused on those rituals for which the Chief Mourner is personally responsible as follows:
(1) The Chief Mourner must cleanse and anoint the deceased’s body with ritually pure oils, so that the remains are a fitting offering/‘sacrifice’ for the purpose of cremation (which is regarded as a ceremonial ritual fire). Once cleansed, only then are other mourners permitted a final audience (‘darshan’) with the deceased. This is typically done the day before the cremation.
(2) The Chief Mourner must perform/lead circumambulation of body at various times stages during the last rites (particularly during ‘pot breaking’ ritual).
(3) The Chief Mourner must lead the funeral procession and ‘give shoulder’ to the deceased by carrying (at least partly) the body/coffin (with assistance from male family members) to the crematorium.
(4) The Chief Mourner must make offerings of pinda rice balls (and money or food) on the body before and/or at the cremation ground (often en route).
(5) The Chief Mourner must perform a pot breaking ritual (kapala kriya). First circumambulating the deceased’s body holding a pot of water behind his head, the pot is then dropped to the ground proximately to the body’s head (in order to help release the deceased’s final ‘vital breath’ (synonymous with liberation of the soul).
(6) The Chief Mourner must ‘give light’ to the deceased’s cremation. In India this is done by lighting a wood pyre, in the UK the Chief Mourner customarily performs this vital function by pushing the coffin into the crematorium furnace and/or by activating the furnace. Thereafter the Chief Mourner (in particular) washes himself to cleanse the ‘ritual pollution’ caused during the course of cremation.
(7) Post-cremation the Chief Mourner must continue to observe a period (of varying length, according to sect) of ritual purity and a degree of social seclusion. Rituals continue to be performed on behalf of the deceased for at least 12-14 days after the cremation, however these are generally under the guidance of a trained ritual pandit and the Chief Mourner is not compelled to attend (although it is of course preferable).
(8) Many Hindu sects observe some manner of ceremonial ‘inheritance’ following cremation. In this instance the witness statements confirm how this will be done at the temple. The specifics of such a ritual vary significantly between different Hindu sects, nevertheless, the ‘turban’ ceremony described in the Claimant’s witness statement is entirely consistent with the characteristics of ‘inheritance’ rituals performed universally within Hindu religious traditions.
His unequivocal conclusion was that the Claimant’s role as Chief Mourner would be fundamentally compromised should he be compelled to attend under the physical restraint of handcuffs and/or physically restrained to security personnel.
– Firstly, there are obvious concerns that the Claimant may not be physically able to perform said rituals while handcuffed.
– Secondly, the Chief Mourner is obliged to maintain ritual purity throughout his involvement in the last rites. This entails not only keeping his body washed but also, more significantly, divesting all material and external attachments. For instance, many Hindu sects would expect Chief Mourners to wear no jewellery or foreign objects on their person, shave their head and maintain a simple, specific diet. Handcuffs or indeed any form of security restraint would constitute a foreign object for the purposes of ritual purity.
– Thirdly, the Claimant was entirely justified in his concern that being restrained to a third party (warder) at the time of performing the last rites would de facto make such party the ‘co-author’ of the rituals alongside the Chief Mourner. The Claimant’s objection was entirely justified – under no circumstances would last rites be deemed to be properly performed under such circumstances.
o Firstly, the sacred duties of the Chief Mourner are exclusive to him and the ceremony would be fatally compromised if requisite duties were shared and/or delegated.
o Secondly, it is unrealistic to imagine security personnel would comply with (if even aware of) the full rigours of ritual purity expected of a Chief Mourner – and their de facto ‘co-authorship’ of the rituals would fatally compromise the ritual purity of the entire ceremony. For example the security personnel will be required to remove shoes and cover heads during the rituals. They will also be required to observe inner and outer purity through not consuming meat or alcohol for example in the lead up to the commencement of the rituals.
He concluded by saying that “the stakes could be no higher. If the Claimant is not permitted to fulfill his ritual role as Chief Mourner without physical restraint (neither handcuffed nor attached to a third party) then he is entirely justified to fear his father’s last rites will not be fully properly performed. Such failure would prevent liberation of the deceased’s soul – and constitute a profound failure of the Claimant’s sacred duty of immense responsibility as Chief Mourner.”
The judgment
The judge reminded himself of the Williamson test the judge had no doubt that the Claimant satisfied the criteria for showing sincerity of religious beliefs and that those beliefs fell within a major world religion and therefore passed the relatively low Article 9 threshold. In the usual way the Secretary of State tried to place reliance on a last minute email from a Hindu Pandit based in Wormwood Scrubs (in itself an admission that the Claimant’s prison does not employ a Hindu chaplain) to show that somehow the Claimant’s Article 9 rights were not engaged. The author of the email acknowledged that the eldest son plays a major role but suggested that it was not necessary for the eldest son to play the role that the Claimant set out in his claim. His advice was that the eldest son would have to press the switch but that there was nothing in Hinduism which opposed the wearing of handcuffs whilst doing so. The learned judge correctly held that whatever the view of some members of the Hindu faith including the author of the email the Court was satisfied that it was of central importance of the Claimant’s beliefs that he performs the roles that he described.
The Defendants argued that there must be exceptions in circumstances where the eldest son is not available. True said the judge but that was not this case. The Claimant was available and it is central to his religious beliefs that he undertake his role faithfully as Chief Mourner.
The learned judge then addressed the question of the Claimant’s ability to perform the tasks whilst wearing a ‘closet chain’ a five foot length of chain with one handcuff at one end (for the detainee) and two handcuffs at the other end (to allow safe transfer between custody officers). In this respect the learned judge took the view that there was no reason to question or doubt the sincerity or strength of the Claimant’s religious beliefs requiring ritual purity which would be contaminated by his being compelled to wear foreign objects including handcuffs. Whether the ritual purity was compromised by the proximity of the escorts depended on how close they would be to the Claimant at the time.
The learned judge then went on to consider Article 8. Consistent with an unchallenged observation of Cranston J in Ghai [2009] EWHC 978 (Admin) at §141 the judge held that Article 8 was engaged. He went on to state that the freedom to mourn and participate in the funeral of a person, especially a parent, is integral to a person’s identity and therefore in principle any interference in the rites of mourning is a major one. Further, to appear in public wearing handcuffs and attached to someone wearing a chain is humiliating and whilst a serving prisoner in normal circumstances can be expected to be subjected to suffer a minor level of humiliation in the case of a funeral where the person is a Chief Mourner, more so in the context of the religious and cultural setting, the level of humiliation caused would be disproportionate. He described a funeral as being an occasion of special importance in one’s private life with potentially damaging consequences if one was not able to take part in it. That level of disproportionate interference was compounded where the individual and the deceased have strong religious beliefs.
In the learned judge’s view Articles 8 and 9 mutually enforced one another.
Working his way through the American Cynamid principles the learned judge considered the extent of interference with Articles 8 and 9 and balanced it with on the other hand strength of competing interests, namely the risk that the Claimant might abscond. The learned judge noted that the Defendants are generally better placed to assess such risk than the court but taking into account the reasons given in this case, the background and circumstances of the Claimant and a degree of common sense he could not understand why the Claimant was considered to pose a material risk of absconding given that whilst on bail for the principal offence the Claimant complied with all conditions and at all times complied with bail conditions; that he only has 90 days or so of his sentence left; that he has been making payments to discharge the confiscation order; that he was assessed as low risk of reoffending if released on temporary licence let alone with two escorts. Further the decision maker did not seem to take into account that the Claimant would be performing religious ceremonies at the time. However even assuming a risk of absconding, which the judge did, the risk came nowhere near justifying the serious interference with the Claimant’s Article 8 and 9 rights in this claim. The proposed restriction was therefore neither proportionate or reasonable.
In making their decision neither Defendant had taken into account and did not attempt to bring ‘cultural’ or ‘religious’ concepts into account when balancing the clear interference in the Claimant’s convention rights.
The Claimant was granted interim relief to attend his father’s funeral free from handcuffs and to be able to fully participate as Chief Mourner.
***
The Claimant was represented by Ramby de Mello and Tony Muman instructed by Stuart Luke of Bhatia Best Solicitors, Nottingham.
Caveat: the above summary of the Court’s judgment is provided for information only and should not be relied on for any other purpose. It is taken from counsel’s note of the ex tempore judgment as best counsel’s ageing hand was able to keep up.
