INTRODUCTION
The rituals that surround the disposal of the dead are one of our species' defining characteristics.Footnote 2 As well as the very practical need of having to dispose of a lifeless corpse, death rituals tend to serve many other functions.Footnote 3 These range from commemorating the passing of a human life and facilitating public expressions of grief,Footnote 4 to impacting upon group identity,Footnote 5 and demonstrating a belief in an afterlife.Footnote 6 Yet whilst disposal of the dead has, from time immemorial, been a universal problem, the way in which humans have traditionally gone about this task has differed considerably.Footnote 7 As a consequence, from Egyptian mummies and Indian cremations to Eastern ancestor rites and African sacrificial ceremonies, every culture has its own set of traditions that are synonymous with death.Footnote 8
The fact that rituals surrounding death tend to be a paradigm exemplar of religious and cultural difference, should perhaps come as no great surprise. In death, as in life, the traditions of every culture are diverse, moulded by a variety of social, political, religious and environmental factors.Footnote 9 Yet the emotive nature of death perhaps explains why religious belief is such a powerful influence in shaping the way in which every culture views death.Footnote 10 Accordingly, it is hardly a shock to discover that there are many important differences between Christian funerary rites,Footnote 11 and those found within the Buddhist,Footnote 12 Hindu,Footnote 13 Jewish,Footnote 14 IslamicFootnote 15 or SikhFootnote 16 traditions.
Perhaps mindful of such considerations the eminent English anthropologist, William HR Rivers, once observed that ‘[f]ew customs of mankind take so firm a hold of his imagination as his modes of disposing of the bodies of his dead’.Footnote 17 Yet whilst these words convey a seemingly immutable truth, British social attitudes to death and related funeral rites have changed significantly in the century since Rivers published his work. For example, today, crematoria are found in practically every town, due to the fact that a majority of British people choose to be cremated in such places after death. But it was not always so. Less than two hundred years ago burial of the dead, rather then cremation, was the norm in Britain.Footnote 18 Accordingly, from the period when legal restrictions on cremation were lifted (from 1852–1884), to its ultimate ‘popularisation’ (since 1952), the British public's approach to cremation has shifted dramatically.Footnote 19 As a consequence, when a person dies today in Britain it is the norm for their body (having been prepared by an undertaker) to be kept in a closed coffin immediately prior to its disposal in a crematorium.
But what if a person wishes that their body after death be neither cremated in a crematorium nor be interred in the ground? What if such a request is (in their opinion) mandated by their religion or culture? Is there a human right to dispose of the body of the deceased even if it is done in a way that is at odds with existing social norms or might even cause offence to others? How far does contemporary Britain, which places great store by respecting racial and religious diversity in life, accord respect to such matters in death?
Such matters are not merely sterile matters of academic conjecture. On the contrary, they have recently been considered by the British Courts. In Ghai v Newcastle City Council,Footnote 20 the Administrative Court held that an (apparent) statutory ban preventing a Hindu man, Davender Ghai, having his remains cremated on an open air funeral pyre, in accordance with his belief that this was the only way in which the cycle of birth and rebirth could progress, was not in breach of his right to freedom of religion and belief under article 9 of the European Convention on Human Rights (ECHR). It was justifiable, the Administrative Court held, for the state to prohibit open air cremation in order to prevent offence being caused to those in the United Kingdom who would object to this practice. The Court of Appeal subsequently upheld Mr Ghai's appeal but not on the basis that his article 9 rights had been breached. Rather, it held that the kind of cremation acceptable to Mr Ghai's beliefs (funeral pyre cremation within a roofless walled enclosure) was not contrary to English law after all.Footnote 21 The Court of Appeal, since it was able to dispose of the issue using the traditional canons of statutory interpretation, did not need to consider human rights issues that had been addressed by the Administrative Court. Notwithstanding the claimant's successful appeal, this article analyses the Administrative Court's approach to the article 9 issues raised in Ghai, which remain untouched by the Court of Appeal's decision. It questions the reasoning of Cranston J in a number of respects, and attacks the Administrative Court for having taken what it regards as an overly conservative approach to the application of article 9. It concludes by pointing out some ironic consequences highlighted by the litigation, concerning the protection of religious freedom under the Human Rights Act 1998.
THE LAW ON CREMATION AND GHAI V NEWCASTLE CITY COUNCIL
Davender Ghai, an orthodox Hindu, believed that in order to achieve a ‘good death’ and successful passage to the afterlife, his remains needed to be cremated on an outdoor funeral pyre, a Vedic rite known as the anthyesthi sanskara. Anything less would have ‘devastating effects for him in the afterlife’, interrupting his cycle of birth and rebirth, possibly irreparably.Footnote 22 Newcastle City Council refused his request, maintaining that UK law prohibited open air cremation. Mr Ghai sought a judicial review of that decision, claiming a breach of article 9 of the ECHR. The Secretary of State for Justice (the Minister responsible for cremation law), as well as a Sikh temple and an organisation advocating natural burial methods, all made representations in their capacities (respectively) as an interested party and first and second interveners.
The law concerning cremation that was applicable in Ghai is contained in the Cremation Act 1902. ‘Crematorium’ is defined as ‘… any building fitted with appliances for the purpose of burning human remains’.Footnote 23 The Secretary of State is empowered to make regulations concerning the conditions for burning human remains,Footnote 24 and it is an offence knowingly to carry out the burning of human remains except in accordance with the regulations.Footnote 25 The most recent regulations are the Crematorium (England and Wales) Regulations 2008, which define cremation as the ‘burning of human remains’, and they provide that no cremation may take place except in a crematorium the opening of which has been notified to the Secretary of State.Footnote 26
Having lost at first instance (see below) Mr Ghai appealed to the Court of Appeal which heard representations that his religious belief would be satisfied if his funeral pyre was located within a walled structure, as long as it was possible for sunlight to shine directly on the body during cremation.Footnote 27 This clarification of the appellant's position led to the Court of Appeal giving the term ‘building’ in section 2 of the Cremation Act its ‘natural and relatively wide meaning’ so as to encompass this kind of structure.Footnote 28 As a result this kind of open air cremation was found not to be unlawful; and consequently no human rights issues fell to be considered by the Court of Appeal.Footnote 29
At the Administrative Court, Cranston J had held, based upon the understanding that a fully open cremation was required by Mr Ghai's beliefs, that the combined effect of the legislation and the regulations was plain: that ‘the burning of human remains, other than in a building, such as on an open air pyre, [was] an offence’.Footnote 30 He therefore went on to analyse whether the (supposed) legislative ban on funeral pyre cremation constituted a breach of article 9 of the ECHR.Footnote 31 It is to this analysis that the remainder of this article now turns.
The European Court of Human Rights has repeatedly affirmed the importance of freedom of thought, conscience and religion as being ‘one of the foundations of a democratic society [and] one of the most vital elements that go to make up the identity of believers and their conception of the good life [as well as being] a precious asset for atheists, agnostics, sceptics and the unconcerned.’Footnote 32 Article 9 protects, in absolute terms, one's freedom of thought, conscience and religion. Thus, a person can believe whatever they want, with the state lacking any power to interfere with this internal sphere, the forum internum. In contrast, however, the manifestation of religion or belief may be subject to the imposition of restrictions by the state as long as such restrictions are in accordance with the three criteria under article 9(2) − ‘prescribed by law’, in pursuance of one of the legitimate aims listed, and ‘necessary in a democratic society,’ with this last requirement meaning that any restriction must be proportionate to the aim that the state is claiming to protect.Footnote 33
In conducting the article 9 analysis, Cranston J addressed a series of questions set out by the House of Lords in R (Williamson) v Secretary of State for the Home Department.Footnote 34 First, were the claimant's beliefs religious? In answering this question in the affirmative, the Court held that they ‘clearly’ were.Footnote 35 Secondly, was athyesthi sanskara a manifestation of a genuine belief held in good faith? The Court held that it was,Footnote 36 for while certain ‘minimum thresholds relating to seriousness, coherence and conformity’ had to be satisfied,Footnote 37 and it was a question for the court to decide whether open air cremation was an essential belief of one strand of orthodox Hinduism, it was ‘emphatically not for the court to embark on an inquiry as to the validity of a belief by some standard such as a religious text or whether it conforms or differs from that of others professing the same religion’.Footnote 38 Furthermore, Cranston J reasoned that whilst the belief must be:
… coherent in the sense of being intelligible and capable of being understood … too much should not be demanded in this regard. Typically religion involves belief in the supernatural. It is not always susceptible to lucid exposition or, still less, rational justification. The language used is often the language of allegory, symbol and metaphor. Depending on the subject matter, individuals cannot always be expected to express themselves with cogency and precision.Footnote 39
The Court noted that the position was, however, different for Sikhs. The first intervener, a Sikh Gurdwara, did not claim that open air cremation was a matter of ‘doctrine and dogma’, but was rather a ‘traditional practice’ advocated by the Sikh Code of Conduct. In view of the fact that Christians and Muslims had burial grounds allocated to them, it was argued that Sikhs should also have their practices recognised.Footnote 40 However, Cranston J held that since open air pyres were only a ‘matter of tradition for Sikhs in India’ rather than a tenet of ‘dogma and belief’, article 9 accorded them no protection on this issue.Footnote 41
What was beyond dispute in this case (at first instance) was that by placing curbs on the burning of human remains, the 1902 Act and the 2008 Regulations clearly constituted an interference with the manifestation of a person's belief, contrary to article 9(1) of the ECHR. Accordingly, the next question which had to be answered was whether such a restriction could be justified under article 9(2), as pursuing a legitimate aim in a proportionate manner.
The Secretary of State had originally argued that the ‘legitimate aim’ which justified banning open air funeral pyres lay in the need to prevent risks to the environment and threats to the safety of bystanders, due to the release of dioxins, mercury emissions and polycyclic aromatic hydrocarbons. However, these public health and environmental arguments were abandoned once it was accepted that such concerns could be dealt with through regulation.Footnote 42 Instead, the Secretary of State proceeded to argue that the ban was justifiable on the basis that it pursued the legitimate aim of protecting public morals and the rights of others, since ‘a large proportion of the population of this country would be upset and offended by open air funeral pyres and would find it abhorrent that human remains were being burned in this manner’.Footnote 43
The Administrative Court accepted that protecting public morals and the rights of others was indeed a legitimate aim of the ban; but it had next to consider whether the ban constituted a proportionate interference in pursuit of that aim—ie, did the requirement that cremation take place in a building strike a ‘fair balance’ between the rights of the claimant and the interests of society?Footnote 44 Cranston J, having taken into account various ‘backdrop features’ (discussed in part 3 below), and declaring that he intended ‘now [to] meet the central issue head on’,Footnote 45 held that the prohibition did not breach article 9 because the Secretary of State was entitled to conclude:
… that the present legislative framework [was] consistent with mainstream cultural expectations of persons living in this country and secure[d] in a practical way the avoidance of likely offence and distress. That calculation [was] not one on which a judge c[ould] speak with any great expertise or authority. The resolution of the various competing interests on this difficult and delicate issue by elected representatives [was] not one a court should easily set aside. It [was] within the remit of the Secretary of State to conclude … that a significant number of people would find both the principle and the reality of cremation by means of open air pyres to be a matter of offence.Footnote 46
As a result, Cranston J concluded that the claimant, in relation to his article 9 claim, should ‘[p]ursue his cause in the public sphere, by campaigning, lobbying and the use of other avenues open to him in a democratic society to try to effect a change in the legislative framework.’Footnote 47
A CRITIQUE OF THE ‘BACKDROP FEATURES’
According to Cranston J, several features in this case formed a ‘backdrop’ to the Administrative Court's decision to deny Mr Ghai an open air cremation. Yet whilst these factors were referred to as ‘backdrop features’, we suggest that in reality their enumeration by Cranston J was the proportionality analysis in this case. After all, this was the only point in his judgment at which the competing interests were balanced against each other—and it was immediately thereafter (and without any further analysis) that Cranston J held the matter of open air cremations should essentially be a decision for Government and Parliament rather than a court.Footnote 48 Given that these backdrop features underpinned the determination of the article 9 issue in this case, they warrant a more detailed analysis.
No blanket interference with the claimant's article 9 rights
The first backdrop feature noted was that there had been ‘no blanket interference with the claimant's article 9 rights’ … ‘as an orthodox Hindu [he] ha[d] a very wide freedom in this country to manifest his religious beliefs [and that] in effect the only interference he complain[ed] of [was] the requirement that his funeral take place in a building’.Footnote 49
This, with respect, rather misses the point: all that Davender Ghai sought was the right to an open air cremation. The fact that he could still manifest his belief in any number of other ways was of little relevance to his central contention (which the Court accepted was held in good faith), that his failure to perform the rite of anthyesthi sanskara would ‘have devastating effects for him in the afterlife’.Footnote 50 For Mr Ghai, denial of this particular ceremony would mean that proper performance of all his other religious duties (which were not interfered with) would count for nought. Accordingly, for the Court to suggest that Mr Ghai remained free to do other things required by his belief seems hardly relevant to his central claim that it was restriction of this ‘pivotal’ sacrament that breached his article 9 rights.
The majority of Hindus do not consider open air cremation to be essential
The second backdrop factor considered by Cranston J was ‘that the vast majority of Hindus in this country do not consider that cremation on an open air pyre is essential to discharge their religious obligations’.Footnote 51 Such reasoning brings to mind previous case law of the European CourtFootnote 52 (and previously Commission)Footnote 53 of Human Rights in Strasbourg, whereby a religious practice must be deemed ‘necessary’ for it to come within article 9(1) of the ECHR.Footnote 54 By focusing on the manifestation of a religion or belief rather than its motivation,Footnote 55 this approach has the advantage of excluding bogus or trivial beliefs from article 9(1)Footnote 56 − yet it also comes close to adjudicating on whether a particular practice is formally required by a religion, a task which judges (given the relevant theological issues) appear ill-equipped to handle. Moreover, this approach is typically based on the questionable assumption that every religion has a single clearly discernable text, which is not open to different interpretations. Thus, in Ghai, the extent to which the Court should have taken into account the views of most Hindus on the matter of open air funeral pyres is questionable. From the Pilgrim Fathers to the Universal Declaration on Human Rights (1948), religious freedom has been predicated on the assumption that a believer has the right to depart from the majority view and act according to his/her beliefs. Indeed, it is only because of the existence of a wide range of world views (including atypical ones) that rules exist (both nationally and internationally) governing freedom of religion and belief—were it were otherwise, such legal provisions would surely be unnecessary.
It is important to bear in mind that, at an earlier stage in its analysis, when considering whether anthyesthi sanskara was an ‘essential belief of one strand of orthodox Hinduism’, the Court acknowledged that the fact that the ‘great majority of Hindus in the United Kingdom do not share the claimant's belief [was] not a complete answer’.Footnote 57 Thus, having apparently, and (it is submitted) rightly, minimised the importance of the relevance of majority beliefs when assessing whether open air cremation was a core aspect of Hindu belief, it is perhaps surprising that this issue re-emerged as part of the ‘backdrop’ to the proportionality analysis.
Cremation law is outdated
The third backdrop factor related to Ghai's submission that the law was outdated because the legal definition of a crematorium (ie, a ‘building fitted with appliances for the purpose of burning human remains’) dated back to 1902, and that ‘the balance it struck could no longer be regarded as valid’.Footnote 58 With this in mind Cranston J suggested that there was ‘no significant evidence that on the disposal of human remains any significant cultural change ha[d] occurred since then.’Footnote 59 Furthermore, in rejecting Ghai's argument, he noted that the 2008 Cremation Regulations had been subject to public consultation, and that faith groups (including the Hindu Forum of Britain), had been sent copies of the Consultation paper.Footnote 60
Hindu and other religious groups may indeed have been consulted in relation to cremation practices, but the contention that cultural expectations on any issue have not changed since the Edwardian age is surely doubtful.Footnote 61 The last century has witnessed the transformation of Britain from a (predominantly) ethnically and religiously homogenous nation into a racially and religiously diverse society.Footnote 62 Indeed, much has already been written on how British attitudes, practices and beliefs about death have undergone significant change in recent decades.Footnote 63 Thus, any assumption that cultural norms governing the disposal of the dead are as they were in 1902 is extremely questionable. After all, there have been significant changes with regard to the practice of cremation, not least in relation to the fact that in 1960 less than one in three corpses were cremated, whereas today more than 70 per cent of deaths lead to cremations in Britain.Footnote 64 Furthermore, with reference to the 2008 Regulations, it should be noted that the Government consultation paper which preceded them stated that:
We recognise that some faiths would prefer to cremate the remains of a member of that faith on what is known as a funeral pyre. Any question as to whether the regulations permit funeral pyres is a matter for the courts and outside the scope of these regulations.Footnote 65
This certainly would appear to be some kind of (tacit) acknowledgment, by the Government at any rate, that there have indeed been significant cultural changes in this area.
An absence of any European consensus on funeral pyres
The fourth backdrop factor identified by Cranston J was the absence of any European consensus on the issue of funeral pyres. According to the evidence adduced by the Secretary of State, ‘no other Council of Europe state … indicated that it permitted funeral pyres’, while the embassies of twelve Council of Europe states confirmed that they did not permit them. Thus, material such as this ‘provided support for the conclusion that the [prohibition on funeral pyres was] proportionate and lawful’.Footnote 66
In view of the historical influence of Christianity in Europe, a faith which (until comparatively recently) has viewed cremation in negative terms,Footnote 67 it is perhaps unsurprising that other European nations do not permit funeral pyres.Footnote 68 This is especially so given that most other European countries have relatively small Hindu populations, particularly in comparison with the sizeable numbers of Hindus living in the UK. Yet, there is perhaps a more fundamental objection to Cranston J's decision to identify this particular issue as a backdrop factor. It is difficult to see why the absence of a consensus across Europe should be one of the factors leading to a finding by a domestic court that such a ban is proportionate in the United Kingdom.
The fact that it is ‘not possible to discern throughout Europe a uniform conception of the significance of religion in society’ is certainly something that the European Court of Human Rights takes into account when it chooses to afford states a widened margin of appreciation in cases involving religion.Footnote 69 But the issue of funeral pyres has not (as yet) been litigated before the Strasbourg Court. Accordingly, there is no case law on the subject which, by virtue of section 2 of the Human Rights Act 1998, must be ‘taken into account’ by UK courts.Footnote 70 The Ghai court, by adopting one aspect of the Strasbourg Court's methodology (which is very much a product of that court's supra-national character), was necessarily tending towards a ‘lowest European common denominator’ approach. Such an approach will inevitably lead to a dilution of protection for the right to manifest one's religious belief in the UK. It is surely questionable whether it is appropriate for a national court to count this as one of the factors contributing to its own deferential stance on the question of proportionality.Footnote 71
Open air cremation could cause offence
The final and, perhaps, most troubling backdrop feature in Ghai relates to the ‘legitimate aim’ criterion relied on by the Secretary of State for the prohibition of funeral pyres. This was the view that ‘a large proportion of the population of this country would be upset and offended by open air funeral pyres and would find it abhorrent that human remains were being burned in this manner’.Footnote 72 While the Secretary of the State will doubtlessly have reflected the views of some, his reasoning can be criticised on the basis that it is questionable whether the proscription of otherwise harmless conduct can ever be justified merely on the grounds that it may cause offence.Footnote 73 At the very least there are serious difficulties in assessing whether the (subjective) intensity of perceived offence is sufficient to justify a criminal sanction, because what one person finds offensive ‘may be water off a duck's back to another’.Footnote 74 As Joel Feinberg has convincingly argued, ‘there are abundant reasons … for being extremely cautious in applying the offense principle’.Footnote 75
However, even notwithstanding these difficulties, the kind of offence with which the Administrative Court was concerned was of an exceptionally attenuated variety. In other words, all of the parties accepted that arrangements could have been made whereby there would have been no or very little prospect of anyone witnessing funeral pyres who did not wish to do so. Cremations would be in secluded places, out of public view, and the chance of the public ‘stumbling on a funeral pyre was remote [given that] sufficient signs could be deployed warning people of the site’.Footnote 76 What is more, anyone who considered such funeral rites to be offensive, and/or mourners of a ‘sensitive disposition’ would be free, quite simply, to absent themselves.Footnote 77 The Administrative Court in Ghai was concerned, therefore, not with direct offence being caused to those observing funeral pyres with their own senses but, rather, with a secondary, or indirect, form of offence.
In this regard, perhaps one of the most problematic aspects of Cranston J's ruling was his reliance on the European Court's decision in Otto Preminger Institute v Austria, in which an anti-religious satirical film was banned by the Austrian authorities in the Tyrol region on the basis that it would be offensive to the Roman Catholic majority in the area.Footnote 78 The Strasbourg Court held that the ban did not breach the right to freedom of expression under article 10 of the ECHR, since it fell within the state's margin of appreciation, even though the applicants had argued that the film would only be seen by (and therefore risk causing offence to) those who chose to see it.Footnote 79 Nevertheless, the European Court held that ‘there was sufficient public knowledge of the basic content of the film to give a clear indication of its nature, such that it was capable in and of itself of causing offence, even though those offended had not been to see it’.Footnote 80 Cranston J held that the ‘same principle must apply’ to funeral pyres.Footnote 81 The distress being prevented was therefore not that of people witnessing at first hand burning human bodies, but rather the sensibilities of people who would find the mere idea of funeral pyres ‘in and of it itself’ offensive.Footnote 82
Cranston J's reasoning in this regard is again open to serious question. In his work exploring the moral limits of the criminal law, Joel Feinberg argues that such attenuated forms of offence should not form the basis of criminal liability. He draws a parallel with the proposition that a ‘keg of nails by the side of the road [is not] a public nuisance because it frightens an unduly skittish horse.’ Feinberg goes on to say:
Human beings who take offence at remarkably little provocation should have the same standing in law courts as skittish horses. The most ‘skittish’ imaginable person is he who suffers acute disgust and revulsion, shock to sensibilities, shameful embarrassment, annoyance, frustration, resentment or humiliation not from something he sees, feels, smells or hears, but rather from unseen activities he knows or fears may be happening beyond his ken…
If ‘bare knowledge’ that discreet and harmless ‘immoralities’ are occurring in private leads to severe mental distress, we should attribute the distress to abnormal susceptibilities rather than the precipitating cause. We don't punish persons when their normally harmless and independently valuable (at least to themselves) activities happen to startle a skittish horse whose presence was unsuspected. Rather we expect owners of skittish horses to keep them away from ‘startling’ activities and to take steps to cure their skittishness.Footnote 83
The Administrative Court's decision in Ghai does just this—it protects the sensibilities of the most queasy, the ‘most skittish’ in the population at the expense of the profoundly held beliefs of the individual.
A further criticism of this aspect of the Administrative Court's approach in Ghai is that it is highly questionable whether people have the right not to be offended as asserted in Otto Preminger. Footnote 84 The philosopher James Griffin, when considering the tradeoffs between human rights and other values, has argued that:
there are values such that a certain amount of the one cannot be outweighed by any amount of the other. … it seems to me that, if what is at stake is my reasonable conception of a good life [or good death?] then no amount of mere upset and distress for members of my community could outweigh it; it would not matter if a hundred people were upset and distressed, or a thousand, or a million.Footnote 85
However, even if it is conceded that such a right not to be caused offence can be derived from article 10(2) as Otto Preminger suggests, this right cannot be seen as conferring a carte blanche on states to restrict any offensive expression or conduct.Footnote 86 Indeed, in Otto Preminger itself, the European Court stated that the obligation on states is to ‘avoid as far as possible expressions that are gratuitously offensive to others and thus an infringement of their rights’.Footnote 87 There seems, therefore, to be a requirement that in order for interference with freedom of expression to be justified, the offence caused to religious sensibilities must be gratuitous.
In stark contrast, the Administrative Court in Ghai accepted that the claimant genuinely believed that open air cremation was a vital part of his cycle of existence, denial of which would have ‘devastating consequences’ for him in the afterlife.Footnote 88 On the Court's own finding, Mr Ghai could in no way be described as requiring a funeral pyre just for the sake of it, gratuitously.Footnote 89 His reasons were of absolute centrality to his existence. Even if it had been accepted that others would (or could) be offended by the knowledge of funeral pyres taking place, it could not even remotely be contended that such offence would be caused ‘gratuitously’, a requirement which the European Court's test in Otto Preminger seems to demand.
Cranston J relied heavily on Otto Preminger in Ghai, but it is important to note that the European Court has apparently moved away from Otto Preminger in recent years. Today it is doubtful whether article 9 affords protection to one's religious feelings over and above other kinds of offence.Footnote 90 Yet, even if this is not the case and the Otto-Preminger test ought to still be employed,Footnote 91 there is no suggestion in Ghai that it was specifically religious feelings that were being protected. It is significant that at no point in the judgment was any attempt made to explain the exact kind of offence that the cremation ban was intended to prevent. Presumably it was just a vague sense of public disgust or queasiness at the very thought of human remains being burnt in an open funeral pyre—an example of what has been termed the ‘yuck factor’.Footnote 92 Yet this is surely far removed from extreme or gratuitous offence being caused to religious convictions, which was supposedly at issue in Otto Preminger.Footnote 93
‘Engagement with the political, not the judicial, process’?
It will be recalled that these backdrop features led directly to the Administrative Court's conclusion that this was a matter more appropriate for resolution by ‘elected representatives’ than a court. Consequently it was suggested that the applicant pursue his case by political rather than legal means, by lobbying and campaigning to change the legislative framework.Footnote 94 Had he not succeeded at the Court of Appeal this would have been an option for Mr Ghai but because Hinduism per se, let alone that strand of orthodox Hinduism for which open air cremation is necessary, is a minority faith in the UK, his chances of success would appear to have been slim.
Certainly, this is an area which demands a careful and balanced approach, with due regard accorded to cultural and religious sensitivities. It probably is the case that the best forum for ultimately striking this kind of balance is the political. But reliance on these arguments—that the appropriate process by which this issue should be addressed was not the judicial, but the political—resulted in the Administrative Court in Ghai wholly failing to carry out the task of weighing the competing factors itself. It effectively abrogated its decision making power, handing it over wholesale to the elected arms of governance. This appears to come close to that very majoritarianism that the legal protection of human rights in a liberal democracy is intended to forestall.
It is perhaps a trite point, but the Human Rights Act 1998 does not give courts the power to ‘strike down’ primary legislation. The Act preserves the sovereignty of Parliament. Some have argued, however, that the HRA does provide the mechanisms by which a kind of constitutional dialogue may take place in which the courts are able to initiate a ‘conversation’ with the other arms of governance as to the precise scope and content of Convention rights.Footnote 95 With this in mind, it is important to remember that even if the Administrative or the Appeal Court in Ghai had held the 1902 Act and the 2008 Regulations were in breach of Mr Ghai's article 9 rights, it would still have been for Parliament and Government to have put into effect remedial provisions, taking into account all of the factors raised. (Indeed it would have been open to them to have reasserted the ban in clearer terms—such is the consequence of the HRA's maintenance of Parliamentary sovereignty.) In all probability a finding of a breach (by either the Administrative or the Appeal Court) would have led to calls for ‘elected representatives’ to set up a workable regulatory framework that would have afforded respect to all the competing interests, including the deeply held religious convictions of orthodox Hindus.
In contrast, however, the extremely deferential stance adopted by Cranston J would, but for the Court of Appeal's decision, have rendered any consideration by Government or Parliament unlikely, no matter what political lobbying Mr Ghai might have engaged in. Indeed, ironically, if orthodox Hindus had needed to campaign for legal reform, it seems likely that the Administrative Court's judgment in Ghai would have been used as evidence by the Government that British law was fully compliant with international human rights standards and that, as a consequence, there was no need for any change.
CREMATION, CULTURE AND THE COMMON LAW
It is worth recalling that in Mr Ghai's case, the followers of his ‘strand of orthodox Hinduism’Footnote 96 believe that fire is the embodiment of the god Agni, and that their failure to perform a final sacrifice to him, by way of cremation on an outdoor funeral pyre (in strict accordance with the Vedic texts), will interrupt the cycle of birth/rebirth and harm the future course of the soul, perhaps irrevocably.Footnote 97 The Administrative Court agreed that the performance of anthyesthi sanskara was a manifestation of the claimant's religious belief, and accepted that it was his ‘genuine belief, held in good faith’ that were he not to be cremated on an open air funeral pyre, there would be devastating results for him in the afterlife.Footnote 98 However, and the point bears repetition, having acknowledged the absolute centrality of anthyesthi sanskara to the claimant's most fundamental beliefs, the Administrative Court then accepted the necessity of prohibiting this ritual merely in order to prevent offence to those who were not even going to witness it at first hand.
In effect the Administrative Court was saying: ‘We accept that you believe this ritual is crucial to your existence; and it is certainly not appropriate for us to inquire into the validity of your belief. And when it comes to manifesting your belief, as long as it's not trivial and makes sense, we are not going to probe too deeply’. But then, at the pivotal point in its analysis, when the proportionality of the state's interference with the fundamental right was to be assessed, and the manifestation of Ghai's belief had to be weighed against the public good, the Court was prepared to accept that the prevention of an attenuated form of secondary offence justified the prohibition of (what it had already accepted was) a subjectively crucial sacrament.
The Administrative Court's reasoning and decision in Ghai perhaps indicate a judicial reluctance to empathise with patterns of religious unorthodoxy, and a failure to take the imaginative leap of seeing the world from the perspective of the other, especially those whose beliefs it cannot even come close to comprehending.Footnote 99 As long ago as the seventeenth century, Pierre Bayle used the technique of imagining the world from the perspective of those with other faiths as a means of forcing his opponents to confront the consequences of their own intolerance.Footnote 100 More recently, Conor Gearty has argued that compassion might be a term upon which our modern human rights vocabulary could be built, because compassion has ‘a cognitive element (understanding the other), an affective element (feeling for the other) and a voluntarist element (doing something about the other).’Footnote 101 In a similar vein, Richard Rorty has argued that we need an increase in sentimental education, a need of a ‘progress of sentiments’ leading to ‘an increasing ability to see the similarities between ourselves and people very unlike us as outweighing the differences’.Footnote 102 Thus, were the Administrative Court in Ghai to have made a leap of ‘imaginative identification’,Footnote 103 had it more obviously tried to see the universe from the perspective of the religious believer, its approach might have been very different.
Of course it must be acknowledged that matters relating to death generally and funeral rites in particular tend to be highly emotive. It is thus not difficult to see why, in areas such as these, judges proceed conservatively. However, such considerations aside, the history of the common law provides at least one pertinent example of a court displaying compassion and being willing to ‘step into the shoes of the believer’. In 1884 Dr William Price a ‘surgeon, healer, Druid, vegetarian and self declared infidel’ was prosecuted at Cardiff Assizes for the cremation of his five month old son, Iesu Grist (who had died of natural causes).Footnote 104 The great Victorian jurist, James Fitzjames Stephen, in adjudicating on the matter, directed the jury that a person who burns instead of burying a dead body did not commit an offence, unless he acted in such a manner as to amount to a public nuisance at common law.
It is not my place to offer any opinion on the comparative merits of burning and burying corpses, but before I could hold that it must be a misdemeanor to burn a dead body, I must be satisfied not only that some people, or even that many people, object to the practice, but that it is, on plain, undeniable grounds, highly mischievous or grossly scandalous. … There are, no doubt, religious convictions and feelings connected with the subject which every one would wish to treat with respect and tenderness, and I suppose there is no doubt that as a matter of historical fact the disuse of burning bodies was due to the force of those sentiments. I do not think, however, that it can be said that every practice which startles and jars upon the religious sentiments of the majority of the population is for that reason a misdemeanor at common law. … Though I think that to burn a dead body decently and inoffensively is not criminal, it is obvious that if it is done in such a manner as to be offensive to others it is a nuisance of an aggravated kind. A common nuisance is an act which obstructs or causes inconvenience or damage to the public in the exercise of rights common to all Her Majesty's subjects. To burn a dead body in such a place and such a manner as to annoy persons passing along public roads or other places where they have a right to go is beyond all doubt a nuisance, as nothing more offensive both to sight and to smell can be imagined.Footnote 105
Stephen J, it is submitted, hit the nail on the head. It is striking that his interpretation of the common law position is a good deal more accommodating of religious freedom than that under statute, at least as interpreted by the Administrative Court. What makes this particularly noteworthy is that the Victorian age is hardly remembered as a time of enlightened tolerance in respect of cultural or religious diversity.Footnote 106 Moreover, the ‘Victorian’ view of a ‘good death’Footnote 107 seems very different from such notions today in contemporary Britain.Footnote 108 Thus, it is all the more surprising that the 19th century common law position in respect of funeral rites appears more progressive than has (hitherto) been the case under the Human Rights Act 1998.
CONCLUSION
Herodotus, writing in the fifth century BCE, recounts a tale of Darius the Great, King of Persia:
… he summoned the Greeks who happened to be at his court, and asked them what they would take to eat the dead bodies of their fathers. They replied that they would not do it for any money in the world. Later, in the presence of the Greeks … he asked some Indians, of the tribe called Callatiae, who do in fact eat their parents' dead bodies, what they would take to burn them. They uttered a cry of horror and forbade him to mention such a dreadful thing. One can see by this what custom can do, and Pindar, in my opinion, was right when he called it ‘king of all’.Footnote 109
As a Zoroastrian Darius knew, of course, that the only correct way to dispose of the dead was by placing the corpse on a high tower to be devoured by vultures.Footnote 110
Herodotus used this anecdote to illustrate his contention that every society considers its own beliefs (and related practices) to be superior to those of others; and the fact that peoples can have such vastly differing beliefs and practices on the responses to a problem which is common to all is evidence of the fact that that there is no morally right approach. On the contrary, the diverse practices of cultures are dictated by custom which is ‘king of all’.Footnote 111
The decision of the Court of Appeal in Ghai that an outdoor funeral pyre (within a walled enclosure, open to the sun) is permitted, is good news for Hindus, Sikhs and anyone else who wishes their mortal remains to be cremated in this way. No doubt it was with great relief that the judges in the Court of Appeal, having ascertained that such an arrangement would satisfy Mr Ghai's beliefs, were able to resolve the issue through traditional methods of statutory construction, rather than having to tussle with the delicate task of balancing the religious faith of the minority against the supposed offence caused to the sensibilities of the majority.
What is disturbing about the litigation, however, is the readiness of the Administrative Court (once it had found that the Cremation Act and associated regulations prohibited open air funeral pyres) to accept that the sincerely held religious beliefs of the individual could be overridden in order to protect the public from secondary offence, coupled with its willingness to shuffle off its decision making responsibility to the other arms of governance. There is something of an irony here. For, as we have seen, under both the common law (R v Price) and under traditional canons of statutory interpretation (the Court of Appeal in Ghai) funeral pyres were found to be permitted. But once the issue was framed in terms of human rights the claim was overridden with apparent ease. The invocation of a human right, with its associated exceptions, seems to have resulted in a weakening of protection for religious practices. Contrary to what might have been expected, the claim of an article 9 breach seems to have opened up the trap of cultural relativism identified by Herodotus, in this exact context, two and a half thousand years ago; for the assumed offence of the majority was used to justify the curtailment of minority religious practice. Under the Human Rights Act it seems, where claims to religious practice that might cause offence are concerned, as the ‘Father of History’ put it, custom is indeed the ‘king of all’.
