The High Court found the submission of the union territory administration that the deceased was a confirmed terrorist and that his dead body was not given to his family, to avoid law and order problems, specious.
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ON May 27, the Jammu & Kashmir and Ladakh High Court directed executive authorities to exhume the body of one Amir Latief Magrey, who was killed along with three others in an encounter between the police and militants on November 11 last year at Hyderpora area of district Budgam. The dead body of Magrey was buried at Wadder Payeen graveyard in the absence of his father and other family members.
The court held 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 foul of Article 14 of the Constitution, besides violating the right to life and liberty guaranteed to a citizen by Article 21 of the Constitution, which includes right of the citizen to live with human dignity.
The court added that this right to live with human dignity extends after death, though in a limited extent.
A single-judge bench of Justice Sanjeev Kumar was ruling on a petition filed by the father of the deceased Magrey, seeking the body of his son for burial at his native place in Ramban in the Jammu region. Allowing the petition, Justice Kumar directed the authorities to make appropriate arrangements for transportation of the dead body to the village of the petitioner for according burial in his native graveyard in accordance with the traditions, religious obligations, and religious faith which the deceased professed during his lifetime, provided that the body is in a deliverable state.
The judge further noted that the dead body of the deceased must be in advanced stage of putrefaction; as such, it would be desirable that the authorities act with promptitude and do not waste any further time.
Justice Kumar clarified that if the body is highly putrefied and is not in a deliverable state or is likely to pose risk to public health and hygiene, the petitioner and his close relatives will be allowed to perform last rites as per their tradition and religious belief in the Wadder Payeen graveyard itself. However, he directed that in that situation, the State will pay to the petitioner compensation of five lakh rupees for deprivation of his right to have the dead body of his son and give him a decent burial as per family traditions, religious obligations, and faith which the deceased professed when he was alive.
The union territory administration contended before the high court that the decision not to hand over the body of the deceased to the petitioner for performing last rites was taken in the larger public interest, and to prevent the situation of law and order going out of hand. The submission, however, did not find favour with the judge who underscored that the State could not come clear as to why the dead bodies of two of the four killed in the encounter, namely, Altaf Ahmad Bhat and Dr. Mudasir Gul, were exhumed and handed over to their relatives for their last rites in the graveyards of their choice, and why the similar right claimed by the petitioner was denied.
The government of the union territory of Jammu and Kashmir sought to justify the dual standards contending that as per the investigation conducted by a Special Investigation Team, the deceased son of the petitioner was a confirmed terrorist whereas the other two killed, namely Bhat and Dr. Gul were only associates of the terrorists.
Finding the submission illogical, Justice Kumar said that, "I do not find any logic or sense in distinction so made by the respondents. It transpires that due to public pressure and demand by the relatives of the two deceased namely, Altaf Ahmad Bhat and Dr. Mudasir Gul, the respondents relented and permitted their dead bodies to be exhumed and handed over to their relatives. Since the petitioner was a resident of Gool, a remote village in Jammu Province and did not have much say in the Valley… his request was arbitrarily turned down. The action of the respondents is not traceable to any procedure established by law which is just, fair and equitable. At least none was brought to the notice of this Court. The decision of the respondents not to allow the petitioner to take away dead body of his son to his native village for last rites was per-se arbitrary and falls foul of Article 14 of the Constitution of India".
The government sought to submit that the dead body was buried on November 15 last year, and the same may have been putrefied by now. The high court, however, did not accept this as a valid reason for not allowing the petition.
"The apprehension of law and order getting vitiated at this point of time also appears to be illusory. When the respondents could maintain the law and order situation when the dead bodies of two, namely, Altaf Ahmad Bhat and Dr. Mudasir Gul were exhumed and handed over to their relatives for last rites on 18.11.2021, it is not difficult for the respondents to make necessary arrangements for exhumation of the dead body of Amir Latief Magrey, the son of the petitioner and transport the same in proper escort to Village Thatharka Seripora Tehsil Gool District Ramban. The respondents can make appropriate arrangements to ensure that law and order situation does not get vitiated in any manner. The petitioner, as is fervently contended by his counsel, is even ready to undertake that he will abide by all the terms and conditions that may be imposed by the respondents with regard to exhumation, transportation and … burial to the dead body", the judge held.
Magrey's father was represented by advocate Deepika Singh Rajawat.
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