court of appeal allows hindu cremations

A friend of mine Rambert (aka 'Ramby') de Mello was counsel in an important case decided in the Court of Appeal a couple of weeks ago brought by a Mr Ghai against Newcastle City Council : http://www.lawreports.co.uk/WLRD/2010/CACiv/R(Ghai)_v_Newcastle.htm

The case decided that Hindus can have open air cremations. Forget the alarmist vista painted by some. It does not mean that we will be seeing dead bodies burning on land all over the country. What the case actually decides is that it is ok to have a cremation in a building with a roof which is open to permit the sun to shine on the pyre.

The legal history is interesting. The first case brought by Mr Ghai, an orthodox Hindu, was under the Human Rights Act. At that stage he did indeed try to assert the right to be cremated on an open pyre and not in a crematorium in accordance . The court took the view that whilst this right was part of his genuine religious belief and therefore fell within Article 9 of the Act, the prohibition was justified to protect public morals and he therefore lost the case. But in his second case Mr Ghai produced evidence that his belief would be satisfied if his cremation took place within a structure provided that it was by traditional fire and sunlight could shine directly on his body whilst it was being cremated. This second case turned on the meaning of the word 'building' in the context of the Cremation Act 1902 section 2 . The Secretary of State intervening in the case argued that a building has to be 'an enclosure of brick or stone covered by a roof' but Rambi said the natural and ordinary meaning of the word building was a construction which was relatively permanent and substantial and that a building could have gaps in the walls. If a cremation was conducted in such a building it would still be shielded from public gaze. The court agreed this time.

In a way the case is an example of how British law can adapt to new faiths and cultures. It is perhaps as much about our law as about the good old British compromise, reflected in our developing legal process. Mr Ghai amended his case and the judges were prepared then to find a way to meet it.