Supreme Court: The Division Bench of Surya Kant and J.B. Pardiwala*, JJ., contemplated important issues related to disinterment, exhumation and conditions feasible to allow such relief prayed for by appellant. The Court upheld the judgment passed by the High Court of J&K in Union Territory of J&K v. Mohammad Latief Magrey, 2022 SCC OnLine J&K 516 by which the Appeal Court modified the judgment passed by the Single Judge of the High Court in Mohammad Latief Magrey v. Union of India, 2022 SCC OnLine J&K 433, and thereby permitted the appellant herein and his family members to perform the Fatiha Khawani (religious rituals/prayers after burial) of the deceased at the graveyard while declining to grant permission to disinter/exhume and shift the body of the deceased for the purpose of religious rituals.
By virtue of Article 136 the appellant (father of the deceased) approached the Supreme Court after being dissatisfied with the order passed by the High Court and prayed for directing the respondents to disinter the body so as to enable the appellant as a father and other family members to perform the prayers/rituals to their satisfaction.
Facts to the extent necessary are that one Mohd Amir Margey, son of the appellant was killed in an encounter between the police and militant in Kashmir. The appellant was informed that his son was a militant and with other associates he was buried in Wadder Payeen graveyard.
The entire contention of the appellant is based on the fact that he has a fundamental right under Article 21 of the Constitution to perform the last rites of his dead son in accordance with the rituals prevailing in Islam. The appellant as a father could not have been deprived of such fundamental right. Hence the exhumation is required.
The respondent vehemently opposed the appeal and contended that authorities have performed the last rites of the deceased as per his religious beliefs and practices and buried the dead body as per the religious customs. It was further contended that it has been more than 8 months from the date of burial of the dead body and as of now the same would have decomposed hence, no purpose would suffice by exhuming the same as the same may lead to adverse public health issues.
Other important contention put forth was that, pursuant to the encounter of terrorist namely Burhan Wani, a disturbing trend of glorification of the deceased terrorists was witnessed in the valley wherein antinational emotions were stoked in the youth and they are instigated against the Indian Republic to join various terror groups hence, exhuming the remains of the deceased, such emotions may be flared and such activities shall be revived which may lead to a further threat to national security and glorification of terrorism.
Questions of law for consideration before the Supreme Court were:
a. Whether the appellant (father of the deceased) can pray for exhumation of the dead body of his son from the graveyard asserting that it is his fundamental right as enshrined under Article 21 of the Constitution to perform the last rites of his slained son?
b. Will it be in the fitness of the things, more particularly, having regard to the fact that the body is now buried past more than eight months to order, exhumation so as to enable the appellant and his family members to perform the rituals as followed in Islam?
c. Assuming for a moment that it is the fundamental right of the father under Article 21 of the Constitution to perform the last rites and rituals of his son with dignity before being buried in a graveyard, should this Court in exercise of its jurisdiction under Article 136(1) of the Constitution disturb the impugned order passed by the High Court at the risk & peril of public order, health etc. and grant the relief of exhumation after almost nine Months?
Exhumation of body: The Court observed that exhumation involves opening up a grave and removing the human remains already buried there. It is controversial even if the intent is usually to rebury the displaced remains elsewhere. Societies and cultures are often reluctant to practice because of public health as it could lead to transmission of disease and it offends the basic moral of ‘rest in peace’.
The Court further referred to Anandhi Simon v. State of Tamil Nadu, 2021 SCC OnLine Mad 1284 where it was stated that the law related to exhumation is only contained in Section 176(3) CrPC and unlike other countries, India has no law on exhumation.
It was held that, “in the instant case, 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.“
Possibility of exhumation and condition of body: It was noted that for exhumation the body should be in a deliverable state otherwise there will be a threat to public health and hygiene. An expert stated that the body start to decompose within 4 min of death and starts to liquify within a month, the putrefaction increases with passage of time. Hence it was observed that, “almost 9 months have passed post burial which is suggestive that the body may 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.“
Article 21 vis-a-vis Right to burial: The dead person has the right to dignity hence the dead body must be treated with utmost respect. These rights are not only for the deceased but his family members also have a right to perform the last rites in accordance with the religious traditions.
Scope of Article 25 and 26 of Constitution: Court while examining the right conferred upon the appellant to practice religious belief and managing religious affairs, referred to Adi Saiva Sivachariyargal Nala Sangam v. Government of Tamil Nadu, (2016) 2 SCC 725 where it was held that, “a just balance can always be made by holding that the exercise of judicial power to determine essential religious practices, though always available being an inherent power to protect the guarantees under Articles 25 and 26, the exercise thereof must always be restricted and restrained.“
Hence, the Court concluded that religious rights are subject to public order, health and morality and cannot be absolute.
Power of Supreme Court under Article 136: The Court while deciding the extent of power to allow such relief claimed by the appellant observed that “principles of law discernible from the aforesaid are that unless, it is shown that exceptional and special circumstances exist; that substantial and grave injustice has been done and the case and question presents features of sufficient gravity to warrant a review of the decision appealed against, this Court would not exercise its overriding powers under Article 136(1) of the Constitution.“
Decision: It was observed that it would have been appropriate and in fitness of things to hand over the dead body of the deceased to the family members, however, in such militant encounters the issue is also of national security and if the agency declines such request, the Court must not interfere unless grave injustice has been done. It was concluded that the body was buried with dignity and there is no reason to believe otherwise. The Court held that, “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.’
[Mohammad Latief Magrey v. Union Territory of Jammu and Kashmir, 2022 SCC OnLine SC 1203, decided on 12.09.2022]
Judgment by: Justice J.B. Pardiwala
Advocates who appeared in this case:
Anand Grover, Advocate, for the Appellant;
Ardhendumauli Kumar Prasad, Advocate, for the Respondent.
*Aastha Sharma, Editorial Assistant has put this report together.