It took four years of complex legal wrangling, nearly bankrupted an ailing Hindu guru and has cost the tax-payer tens of thousands of pounds. But in the end open air cremations were legal all along.
That was the surprise verdict from the Court of Appeal earlier today who ruled that there is nothing in Britain’s cremation laws specifically forbidding someone from cremating themselves in the open air – as long as it is conducted in an enclosed building away from the public’s gaze and abides by environmental regulations.
Their judgement is a remarkable victory for Davender Kumar Ghai, a 71-year-old Hindu holy man from Newcastle who has fought an expensive – and at times lonely – battle against the combined might of Newcastle City Council and the Ministry of Justice who argued that outdoor cremations were illegal.
As he was carried out of the Royal Courts of Justice by his jubilant supporters, Mr Ghai remarked that judges had “breathed new life into an old man's dreams".
“I always maintained that I wanted to clarify the law, not disobey or disrespect it,” he said. “My request was often misinterpreted, leading many to believe I wanted a funeral pyre cremation in an open field, whereas I always accepted that buildings and permanent structures would be appropriate. Now I may go in peace.”
Today's judgement overturns a previous ruling from the High Court last year which ruled that Newcastle City Council had been “justified” in refusing Mr Ghai’s family to burn his body on an open pyre following his death.
That particular case largely centred around whether denying Mr Ghai an open funeral pyre would be a breach on his human rights.
But three Court of Appeal judges, led by Master of the Rolls Lord Justice Neuberger, said there was a much simpler way to decide the case. If Mr Ghai could prove that what he wanted fell within existing law then there should be nothing to stop him from finding or building a crematorium which would meet his wishes.
In the end they decided that Mr Ghai’s wishes to burn on a pyre enclosed within a large structure but open to the elements was not forbidden by the Cremation Act 1902.
In summing up his judgement Lord Justice Neuberger ruled: “Contrary to what everyone seems to have assumed below, and I am not saying it is anyone's fault, it seems to us that Mr Ghai's religious and personal beliefs as to how his remains should be cremated once he dies can be accommodated within current cremation legislation."
The landmark ruling paves the way for anyone in Britain – be they Hindu, Sikh, religious or non-religious – to opt for an open air cremation as long as they can find a crematorium which can conduct the cremations without falling foul of the strict environmental and public health regulations surrounding the disposal of bodies. Currently no such facility exists although the expectation is that some orthodox Hindus will hope to build one soon.
Newcastle City Council, which has accepted the court’s verdict, have now called on the Home Office and Defra to produce clear guidelines for local councils in case they receive planning applications from organisations wanting to build an open air facility.
Mr Ghai told The Independent that he would be hoping to build an open air crematorium “as soon as possible”. He has received “concrete offers” from three benefactors who are willing to give his followers land to build an outdoor crematorium, one of whom is a Lord with large amounts of property in the north of England who has expressed sympathy with Mr Ghai’s cause. “I will need to go back to them now and see whether they are willing to continue that support,” he said.
Andrew Singh Bogan, one of Mr Ghai’s followers (who refer to their guru “Babaji”), said they will now begin drawing up architectural plans for a crematorium that they hope will be given the go-ahead by a sympathetic local council.
“We would probably base it on an outdoor facility that is used by Hindus in the Spanish enclave of Ceuta,” he explained. “It’s a beautiful building with an open roof that is completely private to the outside world.”
Opinion is divided within the British Hindu community over whether open air cremations are a religious necessity or a luxury. Orthodox Hindus like Mr Ghai believe that cremation inside a mechanical crematorium would lead to “akal mrtyu” - a bad death that would hamper his soul’s chances of reincarnation in the next life. But others say the soul leaves the body as soon as someone dies and regard open air pyres as something that should be consigned to the history books.
The vast majority of Britain’s Hindu population have no theological problem with mechanical crematoria, but some do spend thousands of pounds shipping the bodies of their loved ones back to the South Asian subcontinent for a traditional outdoor cremation.
When Mr Ghai first began agitating for open air funerals he found little support from within the wider Hindu community whose leaders were initially reluctant to publicly back him, fearing it would lead to a public backlash. Ironically it took a remark from Justice Secretary Jack Straw to rally Britain’s Hindus to Mr Ghai’s cause.
Last year Mr Straw stated he was opposed to open air cremations because he believed the public would "find it abhorrent that human remains were being burned in this way.” The remark upset large numbers of Hindus who believed it was insulting to describe a ceremony practiced by millions of Hindus, Sikhs, Jain and Buddhists in South Asia as “abhorrent”. From then on all the major Hindu community organisations including the Hindu Forum and the Hindu Council, as well as a small body of Sikh gurudwaras (temples), began backing Mr Ghai’s bid.
But even if an open air crematorium is eventually built, many believe there will still be limited take up. Chandu Tailor, who runs one of the country’s largest Asian funeral companies, told The Independent: “I don’t think we’d suddenly see very Hindu in Britain opting for an open air cremation. Most people are perfectly happy with the normal crematoria. What they really want most are proper facilities to be able to prepare the body according to religious rituals.”
For Mr Ghai and his supporters, the race against time is still on.
“Babaji is not well,” explained Mr Bogan. “He had a mild stroke before Christmas and time is short. What we need to do now is get a facility built as quickly as possible, otherwise today will simply be a paper victory.”