Hindu wins right to be cremated on a traditional funeral pyre

24 February 2010 by

The Queen on the Application of Ghai v Newcastle City Council & Others [2009]EWHC 978 (Admin)

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A devout Hindu man has won the right to have his body to cremated in accordance with his religious beliefs as a Hindu.

In the previous hearing, the Judge, Cranston J, proceeded  on the assumption that the cremation desired by Mr Ghai would be in the open air, i.e. not within any structure. It was accepted by Mr Ghai that such an open air cremation would have been precluded by the legislation relating to cremation, at least if interpreted without reference to section 3 of the Human Rights Act 1998. Mr Ghai’s primary case before the Judge was that, if this was the right interpretation of the legislation, there would be an impermissible interference with his right to manifest his religion or belief under Article 9 of the European Convention. Although the Judge accepted that Article 9 was engaged, he went on to hold that the interference was justified . Mr Ghai also relied on Article 8 and Article 14 of the Convention, but the Judge held that they were not engaged.

The Court of Appeal allowed Mr Ghai’s appeal. The Master of the Rolls based his reasoning on a detailed reading of the 1902 Act, and in particular a wide interpretation of the word “building”:

In these circumstances, I have come to the conclusion that Mr Ghai’s wishes as to how, after his death, his remains are to be cremated can be accommodated under the Act and the Regulations. This is because the various structures I have described in paragraphs 14 to 18 above, namely the cremation area in the Ceuta premises and the various structures in India, are “building[s]” within section 2 of the Act. They are buildings in the ordinary sense of the word, and they are substantial and effectively permanent structures. There is nothing in the Act, or in any external material which can be taken into account when construing the Act, to support the notion that the word is not to be given its ordinary meaning in section 2

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