Hyderpora encounter: SC declines plea of Amir Magrey's father seeking exhumation of his son's body to perform last rites

New Delhi [India], September 12 : The Supreme Court on Monday declined the plea of the father of deceased Amir Magrey, who was killed in the Hyderpora encounter, seeking to exhume his body for performing last rites.
Meanwhile, the top court also directed the Union of India to consider enacting appropriate legislation on exhumation so as to tackle the situations like the one on hand.
"We are of the view that the relief granted by the High Court as contained in para 21 of the impugned judgment can be termed as just, proper and equitable. We direct the respondents to comply with the directions issued by the High Court, as contained in para 21 of the impugned judgment and order," a bench of justices Surya Kant and JB Pardiwala said.
The court said 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 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," the court said.
"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," the court said.
The court noted that the respondents stated on oath that the body of the deceased was buried with all honour. "The body was first washed and thereafter wrapped in fresh white cloth. The prayers were also performed at the time of the burial," the court noted.
"There is nothing to indicate that the deceased was not given a decent burial as enshrined under Article 21 of the Constitution. 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 court of law has to decide the matter in accordance with the law, more particularly, keeping in mind the doctrine of Rule of Law," the court said.
The court deliver its judgement on an appeal filed by the father of the deceased Mohd Amir Magrey, who was killed in an encounter between the police and militants. The father has challenged the judgment and order passed by the High Court of Jammu and Kashmir by which the appeal court modified the judgment and order passed by the Single Judge of the High Court and thereby permitted the appellant herein 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 High Court of Jammu & Kashmir has also awarded a monetary compensation of the amount of Rs. 5,00,000 to the appellant.
On November 15 2021, there was an encounter between the militants and police at the Hyderpora area of Budgam in Kashmir. Four terrorists were shot dead including the son of the appellant.
The material on record further reveals that the bodies of two out of the four persons killed in the encounter were later exhumed and handed over to their relatives for performing their last rites at the place of their choice. The bodies of the other two persons killed in the encounter including the son of the appellant were buried through the Auqaf Committee.
However, it is the case of the appellant that so far as the dead body of his son Amir is concerned, he had approached various authorities with a request to hand over the body but none listened to him and ultimately the body of his son (deceased) was buried at the Wadder Payeen Graveyard.
On November 16 2021, the appellant along with his family members reached the Police Station at Saddar, where he was told that his son Amir Magrey was a militant and was killed along with three other associates at the Hyderpora and the dead body of Amir had been buried.
The petitioner approached the High Court seeking direction to the respondents to hand over the body of Mohammad Amir Magray. A Single Judge of the High Court allowed the same directing the respondents to make necessary arrangements for the disinterment of the body/remains of the deceased Amir Magrey from the Wadder Payeen Graveyard in the presence of the appellant.
The Union Territory of Jammu & Kashmir and others being dissatisfied and aggrieved with the order passed by the Single Judge of the High Court challenged the same in the division bench of the High Court. The division bench did not approve the decision of the Single Judge but permitted the family members to shift and bury at their native graveyard in accordance with religious practice.
The appellant's father of the deceased being dissatisfied with the order passed by the High Court challenged it before the Supreme Court.