Tanisha Rana
Published on: September 12, 2022 at 21:55 IST
The father of Amir Magrey, one of the four people murdered in the encounter at Hyderpora in Srinagar last year, requested that his son’s body be exhumed so that he may give his final rites, but the Supreme Court turned down his request on Monday [UT of Jammu and Kashmir vs. Mohd Latief Magrey].
No evidence that the dead was not given a suitable burial, according to a bench of Justices Surya Kant and JB Pardiwala, who noted that such matters could not be resolved only on the basis of feelings.
“Right to dignity is also available to a dead for his body. We expressed sentiments of appellant. Court of law cannot decide such cases keeping in mind sentiments but only rule of law.”
According to the ruling, a body that has been buried is regarded to be in the custody of the law and its disturbance is subject to the satisfaction of the court.
“Sanctity of grave should be maintained. Court will not order disinter unless it is in interest of justice.”
Therefore, it was determined that the High Court’s decision to deny permission for the deceased’s final rites to follow religious practises was reasonable and proper.
“As a result this appeal fails. Respondents to comply with directions of High Court such as compensation and allow prayers at grave site,” said the top court.
Last month, the Bench had reserved its order on the plea.
Senior Advocate Anand Grover had argued before the court that the petitioner-father was entitled to the holy right of performing the required ceremonies but had given up the necessity for community involvement since it may have raised security issues.
He cited the Geneva Conventions to emphasise that religious death rites are provided for even terrorists.
It wasn’t contested that the dead, Amir Magrey, was a terrorist, and the CD presented to the High Court demonstrated that all Islamic final rites were carried out, according to the Union Territory of Jammu & Kashmir’s legal representative.
On July 1 of this year, the father of Magrey and other family members were given permission by the High Court of Jammu & Kashmir and Ladakh to engage in religious rites and prayers in the Wadder Payeen cemetery in Budgam, Kashmir.
On June 3, a Division Bench of the High Court suspended the application of the single-sentence judge’s from May 27 ordering the government to exhume Amir Magrey’s remains.
The father of Magrey then appealed against this ruling to the supreme court. After giving up his request to have the body exhumed, the Supreme Court decided the case and ordered the Jammu & Kashmir High Court to rule on the petitioner’s argument within a week.
The verdict of a single judge was affirmed in July by the Division Bench of Chief Justice Pankaj Mithal and Justice Javed Iqbal Wani, who ordered the UT to pay the family compensation in the amount of 5 lakh for depriving them of the opportunity to give Magrey a respectable funeral.
The Court, however, refused to let the family open the coffin and view the deceased’s face for the final time.
According to the argument, the petitioner’s family has been denied the opportunity to carry out the deceased person’s final religious rituals.
The right to a dignified existence under Article 21 was said to be established law and to be upheld even after death.
In addition, the relatives of the deceased should be given the chance to see the remains one more time to pay their respects and should have the right to carry out the last rites.
Therefore, the petition stated, the basic rights to a respectable funeral and the exercise of religious rituals regarding it cannot be abandoned.
What the Supreme Court Ruled:
The Bench decided that the deceased also have a right to dignity under Article 21. However, the judges’ reasoning was as follows regarding the basic religious freedom claim made in this case:
“The exercise of these fundamental rights is not absolute but must yield or give way to maintenance of public order, morality and health.”
Despite noting that the remains should have been turned over at the time of the request by the lower courts and authorities, the court considered the passage of time and the fact that the burial had already occurred.
“We are convinced of one thing that the body was buried with dignity. There is nothing on record to indicate that the dead body was dealt with in any manner insulting or hurting the religious feelings of the family members.”
The Court further stated that the corpse may no longer be in a “deliverable” state.
“It will be too much at this stage to disinter the body. The dead should not be disturbed and some sanctity should be attached to the grave … After a body has been buried, it is considered to be in the custody of the law; therefore, disinterment is not a matter of right.
The disturbance or removal of an interred body is subject to the control and direction of the court. The law does not favour disinterment, based on the public policy that the sanctity of the grave should be maintained. Once buried, a body should not be disturbed.”
Relevantly, the Court pointed out that there is no statute governing exhumation while maintaining the compensation award. Regarding this, the judges said,
“The Union of India may consider enacting an appropriate legislation on exhumation so as to tackle the situations like the one on hand.”
Four persons, including Amir Magrey, were murdered at Hyderpora in Jammu and Kashmir in November 2021 as a result of a joint police and security operation.
The relatives of the deceased rejected the police’s claims that two of them, including Magrey, were militants and that the other two were “over ground labourers,” insisting that they were innocent.
Jammu and Kashmir Lieutenant Governor Manoj Sinha commissioned a magisterial probe into the event on November 18 in response to family protests and a public uproar.
The remains of two of the deceased, Dr. Mudassir Gul and Altaf Bhat, had been excavated and given to their families, but Magrey’s body had not been given to his father.
Senior Advocate Anand Grover represented the petitioner before the Supreme Court.
Attorney Ardhendumauli Prasad appeared on behalf of Jammu and Kashmir, a Union Territory.
Advocates Deepika Singh Rajawat and Paras Nath Singh drafted the argument, which was resolved by Grover and submitted by Advocate Nupur Kumar.