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The Jammu & Kashmir and Ladakh High Court on Friday ordered the Central Government authorities to exhume the body of Amir Magrey, one of the four persons killed in a gunfight in Srinagar’s Hyderpora area in November 2021.

Court was hearing a plea filed by Magrey’s father, Mohammad Latief Magrey praying that the body of his son be handed over to him so that he can give Magrey a decent burial.

A single-judge bench of Justice Sanjeev Kumar allowed the petition and ordered the government authorities to exhume Magrey's body to transport it to his village for burial in his native graveyard as per the tradition.

Court stated that the right to life as guaranteed by Article 21 of the Constitution of India includes the right to live with human dignity and decency and would extend to treat the dead body of a deceased person with respect.

"Without dilating much on the issue, it can be said to be well settled that the right to life and liberty guaranteed to a citizen by Article 21 of the Constitution of India includes the right of the citizen to live with human dignity, and this right to live with human dignity even extends after death though in a limited extent," stated court.

Court further directed the respondent authorities to make arrangements for the exhumation of the body/remains of Magrey from the Wander Payeen graveyard in the presence of his father, which was denied earlier by the authorities.

"If the body is highly putrefied and is not in a deliverable state or is likely to pose risk to public health and hygiene, the petitioner and his close relatives shall be allowed to perform last rites as per their tradition and religious belief in the Wadder Payeen graveyard itself," added the court.

The State argued that the decision of not handing over the body of the deceased has been taken in the larger public interest and to prevent the situation of law and order from going out of hand.

It was further argued that the State has witnessed such situations in the past and therefore, had decided not to hand over the dead bodies of the terrorists killed in encounters to their next of kin for cremation or burial to prevent the law and order situation getting worsened.

Although, the State could not justify why the dead bodies of the two of the four killed in the encounter namely, Altaf Ahmad Bhat and Dr. Mudasir Gul were exhumed and handed over to their relatives for their last rites in the graveyards of their choice and why the similar right claimed by the Magrey's father was denied.

Court noted, "The respondents have tried to distinguish by submitting that as per the investigation conducted by the SIT, the deceased son of the petitioner was a confirmed terrorist whereas the other two killed, namely, Altaf Ahmad Bhat and Dr. Mudasir Gul were only associates of the terrorists."

To this, Court opined, “I do not find any logic or sense in distinction so made by the respondents.”

“It transpires that due to public pressure and demand by the relatives of the two deceased namely, Altaf Ahmad Bhat and Dr. Mudasir Gul, the respondents relented and permitted their dead bodies to be exhumed and handed over to their relatives. Since the petitioner was a resident of Gool, a remote village in Jammu Province and did not much say in the Valley and, therefore, his request was arbitrarily turned down,” stated the court.

Court held that the action of the respondent authorities was not traceable to any procedure established by law that was just, fair and equitable.

Conclusively, Court ordered, “The respondents are free to impose any reasonable terms and conditions in respect of exhumation, transportation, and burial of the dead body of Amir Latief Magrey, the son of the petitioner. Since the dead body of the deceased must be in an advanced stage of putrefaction, it would be desirable that the respondents act with promptitude and do not waste any further time."

Case Title: Mohammad Latief Magrey v. Union of India and Ors.