Supreme Court asks J&K and Ladakh High Court to decide whether the family of Hyderpora encounter victim can perform religious rites at the graveyard

The victim's father told the Supreme Court that he was not insisting on his prayer for exhumation of his son's body, allowed by a single Judge of the High Court, but stayed by a division bench of the same court, if he is allowed to perform the last rites at the graveyard. 

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THE Supreme Court, earlier today, asked the division bench of Jammu & Kashmir and Ladakh High Court to decide within a week whether the family of Amir Latief Magrey, who was killed along with three others in an encounter between the police and militants on November 11 last year in the Hyderpora area of district Budgam, can be allowed to perform religious rites at Wadder Payeen graveyard where his dead body was buried in the absence of his family members of the deceased. It also asked the division bench to decide the issue of compensation to the family members as ordered by a single judge-bench of the high court.

A vacation bench of Justices Surya Kant and J.B. Pardiwala passed the order to this effect after senior advocate Anand Grover, appearing for the deceased's father, challenging the order passed by a division bench of the high court, submitted that the petitioner was not pressing for the handing over of the dead body of his son, but that he should be allowed to perform the last rites as per his religious belief at the Wadder Payeen graveyard itself. Besides, Grover argued that the high court be asked to decide the issue of compensation to the family for violating their rights under Articles 21 and 25 of the Constitution.

The Supreme Court also asked the high court to permit Grover to assist the latter through video conferencing.

On June 3, a division bench of the high court comprising Justices Ali Mohammad Magrey and Wasim Sadiq Nargal, while hearing an appeal filed by the Union Territory ('UT') of Jammu and Kashmir, granted a stay of the judgment passed by a single judge-bench on May 27 directing to exhume the body of the deceased son of the petitioner. The division bench also directed the listing of the appeal filed by UT administration on June 28.

The single judge-bench of Justice Sanjeev Kumar had 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 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.

In addition, Justice Kumar clarified that if the body was highly putrefied and was not in a deliverable state or was likely to pose risk to public health and hygiene, the petitioner and his close relatives would 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 the his family traditions, religious obligations and the faith which the deceased professed when he was alive.

Aggrieved with the decision of Justice, the UT administration approached the division bench contending inter alia that Amir Latief Magrey was a confirmed terrorist, and exhuming his dead body would set a wrong precedent.

In his appeal before the Supreme Court, the petitioner argued that the order passed by the division bench of the high court staying the single-judge decision was in gross violation of Articles 21 and 25 of the Constitution, which uphold and protect the right of the deceased to a decent burial by their next of kin following their religious ceremonies and practices.

The appeal, filed through Advocate-on-Record Nupur Kumar in the Supreme Court, contended that the interim stay by the division bench of the high court grossly prejudiced this right of the petitioner and his dead son inasmuch the delay in exhumation of the body would render the right to a decent and religious burial illusory, as there is a potential risk of the dead body further putrefying.

Grover also brought to the notice of the court that the UT administration had itself allowed the exhumation of the dead bodies of two persons namely Dr. Mudasir Gul and Altaf Bhat who were also killed along with the petitioner's son. Their dead bodies were given to their respective families.