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Synopsis

Noting 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 Supreme Court on Monday refused to allow exhumation of body of one Amir Magrey, one of the four persons killed during an encounter between the police and militants in Srinagar’s Hyderpora area in November 2021.

Court, however, opined that the Union of India may consider enacting an appropriate legislation on exhumation so as to tackle such situations as the one on hand.

Amir's father Latief Magrey approached the Supreme Court in June challenging the Jammu & Kashmir and Ladakh High Court order staying the single judge's order wherein the Central Government authorities were directed to exhume Amir's body.

The plea was mentioned before a vacation bench of Justice CT Ravikumar and Justice Sudhanshu Dhulia by Senior Advocate Anand Grover.

Filed through AOR Nupur Kumar, the appeal challenged the High Court's order staying an order of the single judge permitting Magrey and his family members (maximum up to 10 persons) to perform the Fatiha Khawani (religious rituals/prayers after burial) of the deceased at the graveyard while declining to grant permission to disinter the body of the deceased for the purpose of religious rituals.

The Top Court noted that exhumation also known as disinterment involves opening up a grave (or occasionally a vault) and removing the human remains already buried there and is controversial even if the intent is usually to rebury the displaced remains elsewhere.

"Most societies and cultures that embrace burial as a means of bodily disposal exhibit an entrenched reluctance to disturb the dead's earthly repose mainly for two reasons. The first is public health concerns around the potential transmission of disease from the decaying corpses. Secondly, and more fundamentally, exhumation offends the basic moral premise of allowing the dead to rest in peace and is generally regarded as a forbidden or sacrilegious act..", further observed a bench of Justices Surya Kant and JB Pardiwala.

Court further noted that after the deceased was killed in the Hyderpora encounter, the authorities performed the last rites of the deceased with all dignity with the aid of the Auqaf committee as per the religious beliefs and practices and buried him in J&K. 

The stance of the state on oath is, that the dead body of deceased was shifted and buried by the Auqaf committee in accordance with all the religious obligations at the Wadder Payeen Graveyard, in presence of the Executive Magistrate, Zachaldara, which was also relied upon by the Top Court.

Court further noted that the last rites of the deceased had been performed as per the Islamic religious practices by giving a wash/cleaning of dead body, shrouding/systematic wrapping of the body with two white pieces of cloth, covering the whole body followed by the Janaza prayers and consequent burial of the deceased in the grave, reciting the verses from the holy book quaran.

Accordingly, Court held that the disturbance or removal of an interred body was 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....", the bench held.

Court noted that there was nothing to indicate that the deceased was not given a decent burial as enshrined under Article 21 of the Constitution. 

"We, as a court of law, respect the emotions and sentiments expressed by the appellant as the father of the deceased. However, the court of law should not decide the rights of the parties considering their sentiments. The court of law has to decide the matter in accordance with law, more particularly, keeping in mind the doctrine of Rule of Law", concluded the bench while refusing the exhumation of Amir's body.

In the impugned order, a division bench of the High Court had opined that the matter required a final decision after hearing all parties concerned and had thus issued notice. 

“Meanwhile, till the next date of hearing before the Bench, the operation of the impugned Judgment shall stay,” the High Court's division bench had further ordered staying the order of the Single judge bench.

The impugned order was passed in a plea challenging the single judge order wherein the Central Government authorities were directed to exhume the body of Magrey.

Case Title: Mohammad Latief Magrey vs. The Union Territory of Jammu and Kashmir & Ors.