Hyderpora Encounter case: Supreme Court rejects plea for exhumation of deceased for last rites

The Supreme Court on Monday refused to allow the plea by the father of Amir Magrey - one of the four persons killed in last year’s encounter at Hyderpora in Srinagar - who sought the exhumation of his son's body to perform last rites. [Mohd Latief Magrey v. UT of Jammu and Kashmir].A Bench of Justices Surya Kant and JB Pardiwala observed that there was no material to indicate that the deceased was not given a decent burial, and that such cases could not be decided simply relying on sentiments. The order stated,"Right to dignity is also available to a dead for his body. We expressed sentiments of appellant. Court of law cannot decide such cases keeping in mind sentiments but only rule of law."The Bench said that after a body is buried, it is considered to be in the custody of law and that its disturbance was subject to the court's satisfaction. "Sanctity of grave should be maintained. Court will not order disinter unless it is in interest of justice.".Therefore, the order of the High Court refusing to allow the deceased's last rites as per religious customs was found to be just and proper."As a result this appeal fails. Respondents to comply with directions of High Court such as compensation and allow prayers at grave site," said the apex court..The Bench had reserved its order in the plea last month. Before the Court, Senior Advocate Anand Grover had submitted that the petitioner-father had given up the need for community participation in the last rites process as it may have led to security concerns, but was entitled to the sacred right of conducting the necessary rituals. He relied on the Geneva Conventions to underscore that even terrorists are accorded with religious last rites.Counsel for the Union Territory of Jammu & Kashmir had submitted that it was not in dispute that the deceased, Amir Magrey, was a terrorist, and that the CD submitted to the High Court showed that all Islamic last rites were performed..The High Court of Jammu & Kashmir and Ladakh had on July 1 this year allowed the father and other family members of Magrey to perform religious rituals/prayers at the Wadder Payeen graveyard in Kashmir's Budgam.A Division Bench of the High Court had on June 3 stayed the operation of the May 27 judgment of the single-judge directing the government authorities to exhume the body of Amir Magrey.Magrey's father then approached the apex court in appeal against this order. He subsequently gave up the prayer to exhume the body and the Supreme Court disposed of the matter, directing the Jammu & Kashmir High Court to consider the petitioner's plea within one week.In July, the Division Bench of Chief Justice Pankaj Mithal and Justice Javed Iqbal Wani upheld the decision of a single-judge, ordering the UT to pay compensation of ₹5 lakh to the family for depriving them of the right to give Magrey a decent burial.However, the Court declined to allow the family to open the casket and see the face of the deceased one last time..The plea submitted that the petitioner's family have been denied the right to perform the last rites of the deceased as per their religious customs.It was stated that it is settled law that the right to life with dignity under Article 21 is followed even after death.Further, the family of the deceased should have an opportunity to have a final look at the remains to pay respects, and should have the right to perform the last rites.Thus, the fundamental rights to receive a decent burial and practice religious customs towards the same cannot be waived, the plea added..The Bench agreed that the right to dignity under Article 21 also applied to the dead. However, on the question of the fundamental right to practice religion relied upon in this case, the judges reasoned, "The exercise of these fundamental rights is not absolute but must yield or give way to maintenance of public order, morality and health."While observing that it the courts below and authorities at the time of the request should have handed over the body, the Court noting the passage of time and the burial already having taken place noted, "We are convinced of one thing that the body was buried with dignity. There is nothing on record to indicate that the dead body was dealt with in any manner insulting or hurting the religious feelings of the family members."Further the Court noted that the body might, thus, now not be in a 'deliverable' state. "It will be too much at this stage to disinter the body. The dead should not be disturbed and some sanctity should be attached to the grave ... 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."Pertinently, while upholding the compensation award, the Court noted that there is no legislation pertaining to exhumation. In this regard, the judges stated,"The Union of India may consider enacting an appropriate legislation on exhumation so as to tackle the situations like the one on hand.".In November 2021, four people including Amir Magrey were killed in Jammu and Kashmir's Hyderpora in a joint operation by police and security forces.While the police claimed that two of them, including Magrey, were militants and two others were "over ground workers", the families of the deceased disputed the same and claimed that they were innocent.After protests by the families and a public outcry, Jammu and Kashmir Lieutenant Governor Manoj Sinha ordered a magisterial inquiry into the incident on November 18.The authorities had exhumed bodies of two of the deceased Dr Mudassir Gul and Altaf Bhat and handed over the same to their families, but had refused to handover Magrey's body to his father..The petitioner before the top court was represented by Senior Advocate Anand Grover. Advocate Ardhendumauli Prasad appeared for the Union Territory of Jammu and Kashmir.The plea was drawn by Advocates Deepika Singh Rajawat and Paras Nath Singh, settled by Grover, and filed through Advocate Nupur Kumar..[Read judgment]