Hyderpora encounter: Supreme Court reserves judgment in father’s plea for exhumation of son’s body to perform last rites

THE Supreme Court on August 29 reserved the judgment on a petition filed by a father seeking exhumation of his son’s dead body to perform last rites at the Wadder Payeen graveyard. The petitioner’s son, Amir Latief Magrey, was killed in the Hyderpora encounter in Srinagar in November last year. A bench comprising Justices Surya Kant and J.B. Pardiwala heard senior advocate Anand Grover, for the petitioner, and advocate Ardhendumauli Kumar Prasad, for the Union Territory of Jammu and Kashmir.

Grover contended that religious last rites could not be usurped by the State. He submitted that the last rites require, amongst other things, the family of the deceased seeing the mortal remains of the deceased, offering of a bath to the dead body, recitation of the Ṣalāt al-Janāzah (funeral prayer) by the family in the presence of the mortal remains, and the lowering of the body into their grave, for which exhumation of the dead body is necessary.

“By not allowing the exhumation of the mortal remains and carrying out the ceremony at Wadder Payeen, the petitioner’s fundamental rights under Articles 21 and 25 are violated”, Grover added.

Grover argued that the performing of the last rites is a healing process for the emotional injury inflicted upon the family by denying them the opportunity to accord a decent burial to its deceased son. Grover submitted that the petitioner has been supporting the army against the militancy in the Kashmir Valley but now he has been demoralized by the State.

Grover clarified that in the first round of litigation he did not insist on community participation in the last rites since the father of the deceased himself thought it fit that it might have led to security concerns. Grover, however, added that this could not lead to denial of the exhumation of a dead body at the site where the son was buried, and to perform the last rites then and there itself.

Opposing the petition, Prasad submitted that the deceased, Magrey, was a terrorist and the digital evidence submitted to the Jammu & Kashmir and Ladakh High Court showed that all Islamic last rites were performed while burying his dead body at the Wadder Payeen graveyard. He added that the exhumation could not be allowed on the ground of state security and law and order, and that allowing the same would open a floodgate of similar requests and would raise serious security concerns. The affidavit filed by the Jammu and Kashmir government also contended that it has been more than eight months from the date of burial, and as of now the body of the deceased would have decomposed; hence, no purpose would be served by exhuming the body as the same may lead to adverse public health issues.

On June 27, a vacation of the Supreme Court directed a division bench of the high court to decide within a week whether the family of the deceased could be allowed to perform religious rites at the Wadder Payeen graveyard where his dead body was buried in the absence of his family members. It also asked the high court division bench to decide on the issue of compensation to the family members, as ordered by a single judge-bench of the high court.

On July 1, a division of the high court 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 (religious rituals/prayers after burial) of the deceased at the Wadder Payeen graveyard. The bench also maintained the five lakh rupees compensation to the family, as ordered by the single judge.

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 exhumation and handing over to his family of his son’s body for transporting the mortal remains to his native place, and perform 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 the Islamic law at the Wadder Payeen Graveyard where his son was allegedly buried in the absence of the Petitioner and his family members. Moreover, there cannot be waiver of the Fundamental Rights“, the petition reads.

In May this year, a single judge of the high court 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 by 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 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.