R (Ghai) v Newcastle upon Tyne City Council
| Jurisdiction | England & Wales |
| Judgment Date | 08 May 2009 |
| Neutral Citation | [2009] EWHC 978 (Admin) |
| Docket Number | Case No: CO/9067/2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 08 May 2009 |
[2009] EWHC 978 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: Mr Justice Cranston
Case No: CO/9067/2006
Ramby de Mello Tony Muman and Martin Henley (instructed by J M Wilson Solicitors) for the Claimant
Satvinder Singh Juss (Pro bono) for the First Intervener
Richard Drabble QC, Eric Fripp and Ellis Wilford ( instructed by Simons Muirhead & Burton) for the Second Intervener
John McGuinness QC (instructed by Newcastle City Council Legal Services) for the Defendant
Jonathan Swift and Joanne Clement (instructed by Treasury Solicitors) for the Interested Party
Hearing dates: 24–26 March 2009
Mr Justice Cranston:
| INDEX | Paragraphs |
| INTRODUCTION | 1 |
| BACKGROUND | 2–20 |
| HINDU BELIEFS | 21–52 |
| THE SIKH POSITION | 53–60 |
| ENVIRONMENTAL etc. EVIDENCE | 61–70 |
| CREMATION LAW | 72–85 |
| FREEDOM OF RELIGION: ARTICLE 9 ECHR | 86–123 |
| PRIVATE AND FAMILY LIFE: ARTICLE 8 ECHR | 124–142 |
| DISCRIMINATION: ARTICLE 14 ECHR | 143–151 |
| RAMIFICATION OF RIGHTS VIOLATION | 152–155 |
| RACE RELATIONS AND EQUALITY ACTS | 156–158 |
| CONCLUSION | 159–162 |
INTRODUCTION
The claimant, Davender Kumar Ghai (Baba Ji), is what I will describe as an orthodox Hindu who wishes his body to be cremated on an open air pyre following his death. He also wants similar open air funerals for other Hindus. The defendant is the Newcastle City Council (“the Council”), which the claimant approached to facilitate these goals. The Interested Party is the Secretary of State for Justice (the “Secretary of State”). The First Intervener is a Sikh Temple (Gurdwara). In broad terms it made out its case for intervention on the basis that while Sikhs do not as a matter of doctrine and dogma cremate their dead on an open air funeral pyre, traditionally they have done so. The Second Intervener is the Alice Barker Wildlife and Welfare Trust, a charitable organisation which is concerned with assisting persons of no religious faith, and those like the claimant of strong religious faith, to obtain lawful access to cremation or burial of human remains in natural circumstances.
BACKGROUND
The claim
At the end of January 2006 the claimant sent an “earnest request” on behalf of the Anglo Asian Friendship Society to Councillor Peter Arnold, leader of the Newcastle City Council. After setting out the background, that in India open air funeral pyres are an integral component for the transmigration of peoples' souls, and that the absence of this in Britain led bereaved families to suffer remorse, the claimant submitted that dedicated grounds for traditional open air funeral pyres were the only safeguard for sincere religious observants. “Pledging out-of-town land, some 10–12 miles from the city and adjacent to flowing water, would mark the Council's principled endorsement and establish Newcastle as a pioneering force in global inter-faith appreciation”. The claimant referred to the segregated burial grounds made available to Britain's Jewish population from the 17 th century and commented that funeral pyres by comparison would not strain already limited land resources. He acknowledged that the legality of funeral pyres, as with crematoria, was contingent on the application of the Environmental Protection Act of 1990 and that the Society was committed to complying with both the letter and spirit of such laws. The Council need not fund the project but the Society was desirous of the provision of suitable land “as a sincere gesture of principled support”.
A fortnight later Councillor Arnold replied. This is the first decision under challenge. In it Cllr Arnold said that the Council had always been sensitive and proactive in the provision of bereavement services for all faiths and beliefs. However, the law prohibited funeral pyres and as such the Council could not consider the claimant's request until the law was changed. He referred to the Cremation Act of 1902 and the regulations made under it and to the Pollution, Prevention and Control (England and Wales) Regulations 2000. Under the latter permits had to be obtained with conditions aimed at ensuring the reduction or mitigation of, omissions to the air and pollution of the water and soil. It was common practice at the Council's West Road crematorium to allow mourners at a Hindu or Sikh cremation to charge the coffin into the cremator and on some occasions to remain in the crematory to view the entire cremation process. In addition, remains were left uncremulated in accordance with the wishes of the families. The Council was sensitive to all cultural requirements and would be happy to discuss the matter should the law be changed.
There was further correspondence. Then in October 2006 the claimant wrote to the Council recording that he had personally lit the funeral pyre of Rajpal Mehat at an undisclosed, private location in Northumberland. That funeral had been, on his account, sanctioned by the Northumberland Police. He understood that the position of the Council, on the advice of leading counsel, was that open air funeral pyres were illegal. He said that the Hindu community continued to press the Anglo Asian Friendship Society for such funeral rites and that it did not wish to break the law. On behalf of the Society he had asked for the donation of dedicated land some way from the city on which the Society could carry out future funeral pyres for fellow Hindu believers and their families. Those cremations would be carried out at no cost to those from low income families or those unable to afford the trip to India for cremation there. “[A]s a devout practicing Hindu myself, I have also expressed my own wish to be cremated on an open air funeral pyre upon my passing. My desire, in accordance with my religious belief, is that my eldest son will light the pyre and my family will stand over me as my soul safely transgresses into the after-life. Without an open air funeral pyre this cannot be done and there is simply no substitute for it.” He thanked the Council for its expressed sympathy but asked for dedicated grounds to perform traditional open air funeral pyres and a declaration as to the legality of them.
Shortly after the Council replied, referred to the advice it had received from Mr McGuiness QC, and confirmed that funeral pyres were at the present time illegal. The Council asked for the claimant to identify specifically which parts of the advice he might take issue with. It recorded that, having received legal advice from a leading QC that the activity was unlawful, it would be inappropriate to donate dedicated land for the purpose of open air funeral pyres. The letter concluded by opining that the Anglo Asian Friendship Society sought to effect a change in the law. The Council was clearly not in a position to do that. There was further correspondence to which it is unnecessary to refer. It should be noted that the claimant has made clear that he bears no animosity towards the Council.
The claim was issued in late 2006. In it the claimant challenged the Council's decision of February 2006 to refuse him and the Anglo Asian Friendship Society the provision of land for a funeral pyre in Newcastle; their refusal to reconsider its earlier decision; and their decision to maintain the earlier decision. The claimant also sought review of the Council's decision not to permit the funeral rites of Hindus residing within its area to be observed or within the Council's crematoria. Thirdly, the claimant sought declarations as to whether the burning of human remains in a place which was not a crematorium was an activity subject to the provisions of the Cremation Act 1902, or regulations made under it or pollution regulations, and whether open air funeral pyres were or were not lawful.
The claimant and his beliefs
In three witness statements the claimant explains that he is a Hindu, born in Nairobi in 1939, and raised in a devoted Hindu family. He came to this country in 1958 and his father and a few others were the founding members of the first ever mandir (Hindu temple) in Newcastle. He also became the founding president of the Anglo Asian Friendship Society, a multi faith registered charity. The claimant has been a vice-chair of the Newcastle Racial Equality Council and arbitrator for various north- east faith organisations and, amongst other things, has been awarded a UNESCO gold medal for peacekeeping activity.
Because of his religious beliefs the claimant believes that nothing short of an open air funeral pyre, where his body can be burned, is good enough on his death. Any compromise in that regard will, in his view, have devastating effects for him in the afterlife. In his view Hindus are required to perform sixteen sacraments including the anthyesthi sanskara. Cremation must be performed upon an open air funeral pyre. His belief derives in part from the central role which fire forms as part of his daily worship. Every day he lights holy flames in a purpose-built havan kund chamber. The fire is the embodiment of the god Agni. From the age of five he saw how fire played a crucial role in the last rites ceremonies performed in Nairobi for Hindus and Sikhs at an open air funeral pyre site. He estimates that he attended between 120 and 130 open air funerals in Nairobi. As a mourner he found that they were a profound experience, providing spiritual...
To continue reading
Request your trial
-
R (Ghai) v Newcastle upon Tyne City Council
...Equality and Human Rights Commission Third Intervener and (4) The Hindu Merchants Association Fourth Intervener [2010] EWCA Civ 59 [2009] EWHC 978 (Admin) Mr Justice Before: Master of the Rolls Lord Justice Moore-Bick and Lord Justice Etherton Case No: C1/2009/1261 COURT OF APPEAL (CIVIL DI......
-
RM CIS 2147 2007
...Newcastle City Council [2010] EWCA Civ 59 allowing an appeal from the decision by Mr Justice Cranston in the Administrative Court at [2009] EWHC 978 (Admin), to which the parties had referred in the hearing. On 12 February 2010 I invited further submissions on matters arising from these dec......
-
Upper Tribunal (Immigration and asylum chamber), 2015-05-07, VA/18360/2013 & VA/18361/2013
...to enable the soul or spirit to be set free ( as referred to in the cremation case of R(Ghai) v Newcastle City Council and the SSHD [2009] EWHC 978 (Admin)) and a desire for an overseas resident to attend a graveside ceremony without any specified consequences if the ceremony is not perform......
- MARY TERESA DOOGAN and CONCEPTA WOOD, Petitioners and Reclaimers
-
The UK's 'Statue Wars': Can Human Rights Law Assist in Their Resolution?
...no. 38450/12, 25 Oct. 2018. (160) R (Ghai) v. Newcastle City Council (Ramgharia Gurdwara, Hitchin and another intervening) [2009] EWHC 978 (Admin) [2009] WLR (D) 151, para. 120 (per Cranston J.). The Court of Appeal subsequently upheld Mr Ghai's appeal, but not on the basis that his Article......