New Delhi, Sep 12 The Supreme Court on Monday dismissed a plea of a father to hand over the body of his son, who was killed in the Hyderpora encounter in Kashmir in November last year, while asking the Centre to bring a law in connection with exhumation of bodies as there is no such legislation to deal with the request of family members of the deceased.
A bench of Justices Surya Kant and J.B. Pardiwala said: "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. 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 bench said 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," it said.
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," noted the top court.
The bench added that 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, it said.
The top court said the Centre may consider enacting an appropriate legislation on exhumation so as to tackle the situations like the one on hand. "We take notice of the fact that India has no legislation relating to exhumation except Section 176(3) of the CrPC... very few countries have legislation in regard to exhumation. One such legislation available is in Ireland under Section 46 of the Local Government (Sanitary Services) Act, 1948 as amended by Section 4 (2) and the Second Schedule of the Local Government Act, 1994," it said.
The top court said relief granted by the Jammu and Kashmir High Court was just and equitable and dismissed the appeal filed by Mohammad Latief Magrey.
It directed the state government to comply with the high court direction in connection with the compensation of Rs 5 lakh to the family and also allow them to offer prayers at the grave.
During the hearing, the advocate representing the Jammu and Kashmir administration had submitted that it was not in dispute that the deceased was a terrorist and the CD submitted to the high court showed that all Islamic last rites were performed as per the book.
The J&K administration counsel added that eight months have passed, the body would have decomposed and now exhuming the body will only lead to law and order problems, and Magrey has lost his son but he was a terrorist. Jammu and Kashmir administration was represented by standing counsel Taruna Ardhendumauli Prasad.
In its 50-page judgment, the court said: "These are all very sensitive matters involving the security of the nation and as far as possible the court should not interfere unless substantial & grave injustice has been done. Although, for some reason or the other, the body of the deceased was not handed over to the family members yet the same was buried with respect & dignity."
Magrey moved the apex court challenging the Jammu and Kashmir High Court order, which did not allow exhumation of his son's body. Four people, including Aamir Magrey, were killed in the encounter, on the outskirts of Srinagar on November 15 last year. The petition was filed through advocate Nupur Kumar.
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