The petitioner, Mohammad Latief Magrey, has been engaged in a legal struggle before the higher judiciary since last year for the right to exhumation of the dead body of his son Aamir, killed in an alleged encounter in November 2021.
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THE Supreme Court has dismissed a review petition filed by Mohammad Latief Magrey, father of Aamir Latief Magrey, killed in an alleged encounter in Hyderpora in Srinagar in November 2021. The petition sought a review of an order passed by the court in September last year rejecting the request of the father to allow the exhumation of the dead body of his son for the performance of last rites as per religious obligations and family traditions.
“We have considered the review petition on merits. In our opinion, no case for review of the Judgment dated 12th September 2022 is made out. Consequently, the review petition is dismissed on merits,” the order reads.
The review petition was decided in the chambers of the judges without acceding to the request to hear the review in the open court.
On September 12 last year, a bench comprising Justices Surya Kant and J.B. Pardiwala, while dismissing the petition filed by Magrey, affirmed the order of the Jammu & Kashmir and Ladakh High Court which had granted compensation of five lakh rupees to Aamir’s parents for the deprivation of their right to have possession of the dead body of their son and give him a decent burial as per religious obligations, family traditions, and the faith which the deceased professed when he was alive.
It also maintained the direction of the high court permitting a maximum of ten family members to perform fatiha khawani (religious rituals/prayers after burial) of the deceased at the Wudder Payeen ‘martyrs’ graveyard in the Handwara district of Jammu and Kashmir. The graveyard has been used to bury militants and encounter victims far away from their ancestral homes.
The Supreme Court had, however, denied the exhumation of the dead body, observing that there was nothing on record to indicate that the deceased was not given a decent burial as enshrined under Article 21 of the Constitution, adding that, “These are all very sensitive matters involving security of the nation and as far as possible the court should not interfere unless substantial and grave injustice has been done.”
The review petition argued that the State’s act of performing the last rites of the petitioner’s son, allegedly with “all honour”, did not satisfy the requirements of Articles 21 and 25 of the Constitution since the right to life and right to religion would necessarily require the last rites to be performed by the petitioner and other family members of the deceased.
“This has a religious connotation, which ought to have been respected and honoured by the Respondents. This requirement can be dispensed with only when family members are not available or they have disowned the dead body,” the review petition argued.
It further argued that the court erred in finding that “when the body is buried it is in the custody of the law, therefore disinterring it is not a matter of right.” The plea implored that the present case cries out for justice as it involves the death of the petitioner’s son and the denial of the petitioner’s family to perform customary and religious rituals for the deceased.
Besides, the plea argued that the monetary compensation for the wrong done by the State authorities by denying the petitioner his son’s dead body could not substitute the psychological trauma the petitioner and his family members might continue to suffer if they are deprived of the right to perform the religious last rites of their deceased son in accordance with their religion, culture and traditions.
“Allowing the Petitioner to perform the last rites of his son is nothing more than a healing process for the wrongs done by the Respondents depriving him of his rights under Article 21 and 25 of the Constitution,” the review argued.
The review plea also explained in detail the law in England and the United States on burials, and how United States’ laws are more relevant to the Indian context.
It went on to state that the judges ought to have appreciated that on balance, exhuming the body not only allows the family to perform their customary and religious rituals, and reburying the mortal remains at the same place had a cathartic and healing effect on the family, but it also presented no security concerns to the State authorities, nor did it pose any public health or public order issues for the State.
On July 1 last year, a division of the J&K High Court had refused to allow the exhumation of the petitioner’s son’s dead body, observing that the petitioner gave up the right to exhumation before the Supreme Court. The division bench, however, permitted a maximum of ten family members to perform fatiha khawani of the deceased at the Wudder Payeen graveyard. The bench also maintained the five lakh rupees compensation to the family, as ordered by the single judge bench of the high court.
Challenging the July 1 order, the petitioner contended before the Supreme Court that the high court’s division bench misconstrued his statement, to conclude that he gave up the right to seek exhumation of his son’s dead body from the grave and perform the last rites in the presence of his son’s mortal remains. He clarified that what he gave up was the right to exhumation and handing over to his family of his son’s body for transporting the mortal remains to his native place, and performing the last rites there.
“The Respondents had objected to that because of alleged security concerns. The Petitioner nowhere intended, nor did he give up, the right to perform the last rites in the presence of the mortal remains of his deceased son, in accordance with Islamic law, at the Wudder Payeen graveyard where his son was allegedly buried in the absence of the Petitioner and his family members. Moreover, there cannot be a waiver of Fundamental Rights,” the petition reads.
In May last year, a single-judge bench of the high court had directed to exhume the body of the deceased son of the petitioner, holding that the decision of the police not to allow the body of the deceased to be taken away to his native village for last rites was per se arbitrary and fell afoul of Article 14 of the Constitution, besides violating the right to life and liberty guaranteed to a citizen under Article 21 of the Constitution, which includes the right of a citizen to live with human dignity.
Aggrieved with the decision of the single judge, the Union territory administration had approached the high court’s division bench, contending inter alia that Magrey was a confirmed terrorist, and that exhuming his dead body would set a wrong precedent.
Click here to read the order.
