A division bench of the Supreme Court preferred to trust the claim of the Jammu and Kashmir administration that the body of the deceased was given a decent burial.
THE Supreme Court earlier today dismissed the petition filed by Mohammad Latief Magrey, the father of Aamir, killed in the Hyderpora encounter in Srinagar in November last year. The court, however, affirmed the order of the Jammu and 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 the family traditions, religious obligations and 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 Wadder Payeen graveyard in Jammu and Kashmir.
A division bench comprising Justices Surya Kant and J.B. Pardiwala passed the judgment to this effect.
It noted that India has no legislation relating to exhumation except Section 176(3) of the Criminal Procedure Code, adding that very few countries have legislation in regard to exhumation. The bench said that the Union Government may consider enacting an appropriate legislation on exhumation so as to tackle situations like the one on hand.
It also observed that it would have been appropriate and in fitness of things to hand over the dead body of the deceased to the family members, more particularly, when a fervent request was made for the same but it was, of course, true that for any compelling reasons or circumstances or issues relating to public order, more particularly in cases of encounters with militants, the agency concerned may decline to part with the body.
“These are all very sensitive matters involving security of nation and as far as possible the court should not interfere unless substantial and grave injustice has been done”, the court held.
The bench noted that the Jammu and Kashmir administration stated on oath that the body of the deceased was buried with all honour.
“The body was first washed and thereafter wrapped in a fresh white cloth. The prayers were also performed at the time of the burial. There is nothing to indicate that the deceased was not given a decent burial as enshrined under Article 21 of the Constitution. The right to dignity and fair treatment under Article 21 of the Constitution is not only available to a living man but also to his body after his death”, the bench added.
The bench, however, said that it respected the emotions and sentiments expressed by the petitioner, who is the father of the deceased. However, the court of law should not decide the rights of parties considering their sentiments; the court of law has to decide a matter in accordance with law, more particularly, keeping in mind the doctrine of rule of law, it noted.
It opined that 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. A court will not ordinarily order or permit a body to be disinterred unless there is a strong showing of necessity that disinterment is within the interests of justice. Each case is individually decided, based on its own particular facts and circumstances”, the bench observed.
The bench reiterated that the right to live a dignified life as enshrined under Article 21 of the Constitution is not only available to a living person but also to the “dead”. Even a dead person has the right of treatment to their body with respect and dignity which they would have deserved had they been alive, subject to the tradition, culture and religion which they professed.
These rights, the bench held, are not only for the deceased, but their family members also have a right to perform the last rites in accordance with the religious traditions.
Senior advocate Anand Grover, who appeared for the father of the deceased, 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 had argued.
Grover had further argued that the performing of the last rites is a healing process for the emotional injury inflicted upon the family by denying it the opportunity to accord a decent burial to its deceased son. Grover had submitted that the petitioner has been supporting the army against militancy in the Kashmir Valley, but now he has been demoralized by the State.
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 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.
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