MOHAMMAD LATIEF MAGREY VERSUS THE UNION TERRITORY OF JAMMU AND KASHMIR & ORS.

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6544 OF 2022

(@ SLP (C) NO.12743 OF 2022)

MOHAMMAD LATIEF MAGREY …..APPELLANT

VERSUS

THE UNION TERRITORY OF …..RESPONDENTS

JAMMU AND KASHMIR & ORS.

J U D G M E N T

J.B. PARDIWALA, J.

1. Leave granted.

2. “The dead are to rest where they have been lain unless reason

of substance is brought forward for disturbing their repose.”

Justice Cardozo

Yome v. Gorman, 152 N.E. 126, 129 (N.Y. 1926).

3. The leading case on disinterment in the United States is

Pettigrew v. Pettigrew, 56 A. 878 (Pa. 1904) which was

decided by the Supreme Court of Pennsylvania in 1904:

“The presumption is against a change. The

imprecation on the tomb at Stratford, “Curst be he

that moves my bones,” whether it be Shakespeare’s

own or some reverent friend’s, expresses the

universal sentiment of humanity, not only against

profanation, but even disturbance. When a case

comes into court, the chancellor will regard this

sentiment, and consider all the circumstances in

that connection.”

4. This appeal is at the instance of the original writ applicant

(father of the deceased, whose son, namely, Mohd. Amir Magrey

was killed in an encounter between the police and militants)

and is directed against the judgment and order passed by the

High Court of Jammu & Kashmir and Ladakh at Srinagar in

Union Territory of J & K and Others v. Mohammad Latief

Magrey and Another, 2022 SCC OnLine J&K 516 (the Letters

Patent Appeal No. 99 of 2022 dated 01.07.2022) by which the

Appeal Court modified the judgment and order passed by the

learned Single Judge of the High Court in

Mohammad Latief Magrey v. Union of India and Others,

2022 SCC OnLine J&K 433 (the Writ Petition (C) No. 11 of 2022

decided on 27.05.2022) & 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.

Factual Matrix

5. It appears from the materials on record that on 15.11.2021,

there was an encounter between the militants and police at

the Hyderpora area of Budgam in Kashmir. Four militants

were shot dead including the son of the appellant herein. In

connection with the said incident, a First Information Report

No. 193/2021 was registered at the Saddar Police Station for

the offences punishable under Sections 307/120B IPC, 7/27

of the Arms Act and 16, 18, 20 resply of the ULA (P) Act.

During the course of the investigation, the Investigating Officer

recovered four bullet ridden unidentified dead bodies at the

site of the encounter. The dead bodies were shifted to the

Police Hospital at Srinagar for the medicolegal formalities.

After conducting the postmortem etc., the dead bodies were

identified as that of a foreign terrorist viz. Bilal Bhai @ Hyder

@ Saqlain R/O Pakistan, Aamir Latief Magrey S/O Mohammad

Latief Magrey R/O Seeripora Tehsil Gool Ramban, Altaf

Ahmad Bhat S/O Abdul Rehman Bhat R/O Old Barzulla

Srinagar and Dr. Mudasir Gull S/O Ghulam Mohammad

Rather R/O Parraypora Srinagar. All the four dead bodies were

shifted to the Handwara Zachaldara for burial.

6. The material on record further reveals that the bodies of the

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 i.e. Bilal Bhai @

Hyder and the son of the appellant herein buried through the

Auqaf Committee, Wadder Payeen were not disinterred and

handed over to their respective family members.

7. It appears that so far as the deceased, namely, Bilal Bhai, a

resident of Pakistan is concerned, nobody claimed his body

nor was there any demand for handing over of the dead body

from any quarter. However, it is the case of the appellant

herein 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. It is his case that he was informed

by the Police Station at Gool on 16.11.2021 that his son Amir

had been killed in an encounter in Kashmir and that he

should proceed to Kashmir to identify the body. On

16.11.2021, 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.

8. In such circumstances referred to above, the appellant herein

preferred the Writ Petition (C) No. 11 of 2022 in the High Court

and prayed for the following relief:

“In view of the submissions made herein above and

those to be urged at the time of hearing, this Hon’ble

Court is humbly requested to direct the respondents to

handover the body of Late Mohammad Amir Magray,

who was killed in a joint encounter by them on

15.11.2021 at Hyderpora area of Budgam in Kashmir to

the petitioner who happens to be his biological father on

the facts and grounds mentioned above.”

9. A learned Single Judge of the High Court adjudicated the writ

application and allowed the same directing the respondents

herein 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

herein.

10. The learned Single Judge while allowing the writ application

filed by the appellant herein, held as under:

“15. The right of the next of kin of the deceased to have

their dear one cremated or buried as per the religious

obligations and religious belief that the dead person

professed during his life time, is part and parcel of right

to life guaranteed under Article 21 of the Constitution of

India. The parents and close relations of the deceased

are well within their right to demand the dead body

of their dear one to be cremated or buried as per their

traditions, religious obligations and religious belief. This

right would also include the choice of the relatives to

have the dead body cremated or buried at his native

place. It is not uncommon that the graves of the dead

are maintained by their relatives and are visited by their

relations and close friends to pay respect and homage

on certain occasions.

16. Without dilating much on the issue, it can be said to

be well settled that right to life and liberty guaranteed to

a citizen by Article 21 of the Constitution of

India includes 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. Viewed

thus, the right of the petitioner to claim the dead body

of his son for performing last rites in his own way and

in accordance with local traditions, religious obligations

and religious faith, which the deceased professed

during his life time, cannot be disputed. But the question

that needs to be addressed in the context of present

controversy is whether the State can deny this right in

the name of preventing law and order situation going

out of hand.

17. It is vehemently contended by the respondents that

the decision not to hand over the body of the deceased

to the petitioner for performing his last rites, was taken

in the larger public interest and to prevent the situation

of law and order going out of hand. It is submitted that

respondents have witnessed such situations in the past

and, therefore, have decided not to handover 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. The respondents,

however, have not come clear as to why the dead bodies

of 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 petitioner was denied. The respondents

have tried to draw distinction 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. 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.

The action of the respondents is not traceable to any

procedure established by law which is just, fair and

equitable. At least none was brought to the notice of this

Court. The decision of the respondents not to allow the

petitioner to take away dead body of his son to his

native village for last rites was perse arbitrary and falls

foul of Article 14 of the Constitution of India.

18. Much has been said by the respondents with regard

to the status of the body lying buried since 15.11.2021.

While it cannot be disputed that the body of Amir Latief

Magrey buried on 15.11.2021 in Wadder Payeen

Graveyard may have putrefied by now but that alone

cannot be a reason not to handover the remains of the

dead body to the petitioner who is clamoring at the top

of his voice to get even the remains of the dead body

of his son so that he could bury him in his native

graveyard in the presence of relatives and after

following all religious obligations. The apprehension

of law and order getting vitiated at this point of time

also appears to be illusory. When the respondents could

maintain the law and order situation when the dead

bodies of two, namely, Altaf Ahmad Bhat and Dr.

Mudasir Gul were exhumed and handed over to their

relatives for last rites on 18.11.2021, it is not difficult for

the respondents to make necessary arrangements for

exhumation of the dead body of Amir Latief Magrey, the

son of the petitioner and transport the same in proper

escort to Village Thatharka Seripora Tehsil Gool District

Ramban. The respondents can make appropriate

arrangements to ensure that law and order situation

does not get vitiated in any manner. The petitioner, as is

fervently contended by his counsel, is even ready to

undertake that he will abide by all the terms and

conditions that may be imposed by the respondents

with regard to exhumation, transportation and

according of burial to the dead body.”

11. The learned Single Judge issued the final directions in para

19, which reads thus:

“19. For the foregoing reasons, I am inclined to allow

this petition of the father of the deceased Amir Latief

Magrey and direct the respondents to make

arrangements for exhumation of the body/remains of

the deceased Amir Latief Magrey from the Wadder

Payeen graveyard in presence of the petitioner. The

respondents shall also make appropriate arrangement

for transportation of the dead body to the village of the

petitioner for according burial in his native graveyard in

accordance with the traditions, religious obligations and

religious faith which the deceased professed during his

life time provided it is in deliverable state. 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 advance stage of putrefaction, as

such, it would be desirable that the respondents act

with promptitude and do not waste any further time.

However, if the body is highly putrefied and is not in

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. In that situation, the State shall pay to the

petitioner a compensation of Rs. 5 lakhs for deprivation

of his right to have the dead body of his son and give

him decent burial as per family traditions, religious

obligations and faith which the deceased professed

when he was alive.”

12. Thus, the learned Single Judge addressed himself essentially on

the following issues:

a. The State could not have denied the right of the appellant

to claim the dead body of his son for performing the last

rites in accordance with his religious faith on the ground

of likelihood of disturbance of public order. According to

the learned Single Judge, such right as asserted by the

father is enshrined under Article 21 of the Constitution.

b. Why the dead bodies out of the four killed in the

encounter were permitted to be exhumed and handed

over to their relatives for their last rites?

c. The action on the part of the respondents in not allowing

the appellant to take away the dead body of his son to his

native village was violative of Article 14 & 21 resply of the

Constitution.

13. The Union Territory of Jammu & Kashmir and others being

dissatisfied and aggrieved with the aforesaid order passed by

the learned Single Judge of the High Court challenged the

same by filing the Letters Patent Appeal No. 99 of 2022. The

Appeal Court disposed of the appeal holding as under:

“15. Learned Advocate General while making his

submission in line with the contentions raised and

grounds urged would contend that the impugned

judgment is not legally sound and that writ petitioner

was not entitled to any of the reliefs prayed in the

petition including the reliefs sought now. According to

the learned Advocate General, the writ court misdirected

itself while considering the controversy and did not

consider the matter in its right and correct perspective,

warranting as such, setting aside of the impugned

judgment and dismissal of the petition. The learned

Advocate General, however, would fairly contend that

having regard to facts and circumstances of the case,

respondent no. 1 and his family members can be

allowed to perform Fatiha Khawani (prayers after

burial) at the grave of the deceased subject to security

measures as may be required to be put in place by

appellants, as according to him, the last rites of

deceased had been performed as per Islamic Religious

practices by giving a washing/cleaning of dead body,

shrouding/systematic wrapping of the body with two

white pieces of cloth, covering the whole body followed

by Janaza prayers and consequent burial of the

deceased in the grave, reciting verses from the Holy

Book Quran.

16. Learned counsel for writ petitioner/respondent no.

1, however, would controvert the contentions raised and

grounds urged by learned Advocate General inasmuch

as the aforesaid offer made by learned Advocate

General, and would insist for exhumation of the body of

the deceased for performance of last rites by the writ

petitioner/respondent no. 1 herein.

17. In view of giving up of the relief of exhumation of the

body of the deceased for performance of last rituals by

writ petitioner/respondent no. 1 before the Apex Court

inasmuch as in view of uncontroverted/unopposed

stand taken by appellants before the Writ Court, that

last rites of deceased stand already performed while

burying deceased at Wadder Payeen Graveyard, the

contention of the counsel for respondent no. 1 in fact

pales into insignificance and is not acceptable.

18. The prayer of counsel for respondent no. 1 made

during the course of arguments that respondent no. 1

and his family members be permitted to see the face of

deceased by opening the grave of the deceased, cannot

be accepted and permitted, firstly, in view of pleading of

writ petitioner that the dead body would start

decomposing immediately after burial, and secondly in

view of the statement made by the writ petitioner before

the Apex Court while giving up the prayer of exhumation

of the dead body of the deceased.

19. The aforesaid offer made by learned Advocate

General seemingly is fair and reasonable in the facts

and circumstances of the present case.

20. Insofar as alternative relief, pressed by respondent

no. 1 before the Apex Court qua payment of

compensation as granted by the Writ Court is

concerned, it needs to be appreciated that appellants

admittedly did not provide opportunity to respondent no.

1 and his family to associate in the burial and

performance of last religious rites of the deceased.

Appellants prima facie have acted unfairly inasmuch as

unreasonably in this regard notwithstanding the

allegation of appellants that person of deceased was a

terrorist even if it may be assumed, as such, that the

deceased relinquished his right to be buried after

performance of last rites performed by his family

members in accordance with the faith professed by him,

yet the said right of burial and performance of last

religious rituals of deceased available to respondent no.

1 and his family members could not have been denied.

Admittedly, respondent no. 1 and his family manifestly

has been subjected to emotional and sentimental

melancholy. Respondent no. 1 and his family have been

deprived by appellants of the right to perform last rites

and rituals of deceased by the appellants admittedly

without there being any policy/guideline, as such

cannot be endorsed in law, in that, ours is a Welfare

State acknowledged by the whole globe. The appellants

herein also could not have overlooked the background of

the family of respondent no. 1 and his family's role in

fighting terrorism. The Writ Court having regard to the

aforesaid position has rightly awarded the

compensation to the respondent no. 1 for such

deprivation and the award of said compensation

seemingly is appropriate.”

14. The Appeal Court issued the following directions in para 21, as

under:

“21. For all what has been observed, considered and

analysed above, and having regard to the peculiar facts

and circumstances of the present case, the instant

appeal is disposed of as follows:

(i) Appellants to allow respondent no. 1 and his family

members (maximum 10 persons) to perform Fatiha

Khawani (religious rituals/prayers after burial) of

deceased at Wadder Payeen Graveyard, on the

date and time to be decided in consultation with

respondent no. 1, subject to taking into account

security measures which may be required to be put

in place inasmuch as the COVID19 guidelines.

(ii) Appellants to pay compensation of Rs. 5.00 Lakhs,

awarded by the Writ Court, to respondent no. 1 is

maintained. It is made clear that the payment of

said compensation by appellants to respondent no.

1 shall not form a precedence for future in view of

the fact that the said compensation stands

awarded to the writ petitioner/respondent no. 1 in

view of the peculiar facts and circumstances of the

instant case.”

15. Thus, from the aforesaid, it is evident that the Appeal Court

did not approve the decision of the learned Single Judge to

direct the respondents herein to exhume the body of the

deceased and thereby permit the family members to shift and

bury at their native graveyard in accordance with the religious

practice.

16. The appellant (father of the deceased) being dissatisfied with

the order passed by the High Court is here before us with the

present appeal invoking Article 136 of the Constitution.

Submissions on behalf of the Appellant

17. Mr. Anand Grover, the learned senior counsel appearing on

behalf of the appellant, at the outset, submitted that he would

like to confine his prayer to the extent of 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. Mr. Grover submitted that

the body is now buried past almost more than eight months.

In such circumstances, the family members of the deceased

would not like to disturb the remains of the dead body and

once the prayers are offered, the body may be once again

buried. However, Mr. Grover clarified that the appellant would

like to wash the body with water and wrap it up with a new

white cloth.

18. Mr. Grover further submitted that the Appeal Court ought not

to have disturbed the order passed by the learned Single

Judge directing the respondents to exhume the body. He

would submit that the appellant as a father still believes that

his son was not a terrorist or a militant and was killed in a

fake encounter. Mr. Grover would submit that assuming for a

moment without admitting that the deceased was a militant,

the police should have handed over the dead body to the

family members and could not have buried the body discreetly

at the Wadder Payeen Graveyard.

19. The entire line of argument of Mr. Grover is that the appellant

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. He would

submit that as the appellant was not permitted or rather given

an opportunity to perform the last rites of his dead son, there

is no other option but to pray for exhumation of the dead

body.

20. In support of his aforesaid submissions, Mr. Grover seeks to

rely upon the following decisions:

(1) Pt. Parmanand Katara, Advocate v. Union of India,

(1995) 3 SCC 248,

(2) S. Sethu Raja v. The Chief Secretary, The Chief

Secretary, Government of Tamil Nadu and Ors.,

WP(MD) No.3888 of 2007 decided on 28.08.2007,

(3) Ramlila Maidan Incident, In Re, (2012) 5 SCC 1,

(4) Jakir Sk. v. The State of West Bengal & Ors., 2017

SCC OnLine Cal 3354,

(5) Vineet Ruia v. Principal Secretary, Ministry of

Health and Family Welfare, Government of West

Bengal, AIR 2020 Cal 308,

(6) Ram Sharan Autyanuprasi v. Union of India, AIR

1989 SC 549,

(7) Ashray Adhikar Abhiyan v. Union of India, (2002) 2

SCC 27,

(8) Pradeep Gandhy v. State of Maharashtra, 2020 SCC

OnLine Bom 662.

21. In such circumstances referred to above, Mr. Grover prays

that there being merit in his appeal, the same may be allowed

and appropriate relief may be granted.

Submissions on behalf of the Respondents

22. On the other hand, this appeal has been, vehemently, opposed

by Mr. Ardhendumauli Kumar Prasad, the learned counsel

appearing for the respondents submitting that no error, not to

speak of any error of law could be said to have been committed

by the High Court in passing the impugned order. The learned

counsel would submit that the impugned order passed by the

High Court is a balanced order keeping all the relevant aspects

of the matter in mind, more particularly, the issues relating to

public order etc. and no interference is warranted at the end of

this Court in exercise of jurisdiction under Article 136 of the

Constitution.

23. The learned counsel would submit that the appellant as a

father of the deceased cannot assert that he has a

fundamental right under Article 21 of the Constitution to seek

exhumation of the body for the purpose of performing the

necessary rituals.

24. The learned counsel invited the attention of this Court to the

averments made in the affidavit in reply filed for the purpose

of opposing the present appeal. We quote the relevant

averments, as under:

“4. It is respectfully submitted that in the previous round

of before this Hon'ble Court in SLP(C) No. 10760 of 2022,

the Petitioner submitted that he does not press for the

relief regarding exhumation and handing over of the

body remains of his deceased son. Relevant extract of

the order dated 27.06.2022 passed by this Hon'ble

Court in SLP(C) No. 10760/2022 are reproduced herein

below:

"Learned counsel for the petitioner at the outset

states that he does not press for the first relief

granted by the learned Single Judge of the

High Court regarding exhumation and handing

over of the body remains of his deceased son."

5. Pursuant to the above, the Hon’ble High Court after

considering the said submission of the petitioner herein

passed the present Impugned Order. Relevant extract of

the Impugned Order dated 01.07.2022 passed by the

Hon’ble High Court is reproduced herein below:

"7. Indisputably, Respondent No. 1 herein has

given up first relief, granted by the Writ Court,

before the Apex Court as regards exhumation

and handing over of the bodyremain of his

deceased son. As such, the appearing counsel

for parties were heard on the rest of the reliefs

identified in the order of the Apex Court."

6. Further, the Hon’ble High Court whilst passing the

present impugned order was pleased to allow the

petitioners herein and his family members (maximum 10

persons) to perform Fatiha Khawani (religious

rituals/prayers after burial) of the deceased at Wadder

Payeen Graveyard, on the date and time to be decided

in consultations with respondent no. 1, subject to taking

into account security measures which may be required

to be put in place in as much as the COVID19

guidelines.

7. It is submitted that the respondent is agreeable to the

abovementioned relief granted by the Hon'ble High

Court with regards to performing Fatiha Khawani

(religious rituals/prayers after burial) subject to

reasonable conditions being imposed by the concerned

District Magistrate in the interest of public health,

security and maintenance of law and order.

8. It is humbly submitted that further relief sought by

the Petitioner before this Hon'ble Court regarding

exhumation of the body of the deceased and offering

prayer thereat is opposed by the answering respondent

authorities on the ground of state security, law and

order, public health & hygiene apart from the fact that

the same will open a floodgate of similar requests and

will raise serious security concerns and threat to public

order and health. In this regard detailed averments

have already been submitted by the answering

respondent before single bench and Divisional Bench of

JK High Court.

9. It is respectfully submitted that the deceased was a

hard core terrorist associated with a terrorist group and

was killed in an encounter with the security forces on

15.11.2021 along with Pakistan based terrorist with

whom he was hatching different terror conspiracies.

10. That pursuant to the fierce gun battle/encounter

that led to killing of the deceased terrorist, 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 is respectfully submitted

that the Hon'ble High Court has nowhere observed that

there has been any violation of practice of religious

customs during the last rites of the deceased.

11. It is respectfully submitted 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. This

factual position is also elaborately admitted by the

petitioner in its pleadings as well before the Hon'ble

High Court of J&K, Srinagar.

12. That, it is further respectfully submitted 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. It is respectfully submitted that in

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.

13. It is respectfully submitted that the valley is affected

by terror activities and there are regular gunbattle/encounters between the security forces and

terrorists. Any direction of exhumation of the body will

lead to similar requests from the family of other killed

terrorists, which may adversely affect security of nation

and public order in the entire Union Territory of JK, as

mentioned above and averments already submitted

before the Honourable High Court.

14. Therefore, in light of the submissions made hereinabove, it is respectfully submitted that the prayer of

exhumation of the mortals of the deceased may not be

granted and the direction of allowing the petitioners

herein and family (maximum 10 persons) to perform

Fatiha Khawani (religious rituals/prayers after burial) of

the deceased at Graveyard, on the date and time to be

decided in consultations with respondent no. 1, subject

to taking into account security measures which may be

required to be put in place in as much as the COVID19

guidelines may be allowed and the present Special

Leave Petition may be dismissed.” [Emphasis supplied]

25. In such circumstances referred to above, the learned counsel

appearing for the respondents prayed that there being no

merit in this appeal, the same may be dismissed.

Analysis

26. Having heard the learned counsel appearing for the parties

and having gone through the materials on record, the following

questions of law fall for the consideration of this Court:

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?

d. Whether the High Court in appeal committed any

substantial error in passing the impugned order?

Exhumation of Body

27. Exhumation involves opening up a grave (or occasionally a

vault) and removing the human remains already buried there.

Also known as ‘disinterment’, exhumation 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.

28. Ordinarily, the request for exhumation would fall into two

broad categories: “public interest and personal reasons.”

29. The lawful authority for exhumation is contained in Section

176(3), CrPC, 1973. This activity is permitted for the purpose

of crime detection and other such pressing situations.

Whenever there is a suspicion of foul play like homicide,

criminal abortion, disputed cause of death, poisoning etc.

exhumation may be carried out for the purpose of postmortem examination.

30. 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 and

buried him in J&K on 15.11.2021.

31. 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. 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. However, the appellant asserts that it was his

privilege to perform the last rites of his son as a father.

Scope of Articles 25 & 26 resply of the Constitution

32. In Mohd. Hamid and Another v. Badi Masjid Trust and

Others, (2011) 13 SCC 61, this Court held that:

“10. …..Page 406 of Hanafi Law Relating to Wakf or

Trusts was also placed before the High Court and has

also been placed before us by the counsel appearing for

the respondents. Page 406 of the said law reveals a

fatwa contained in FatawaeAlamgiri at p. 556, in

which it is stated under the heading “A burial ground”

in the following manner:

“When a body has been buried in the ground,

whether for a long or short time, it cannot be

exhumed without some excuse. But it may lawfully

be exhumed when it appears that the land was

usurped, or another is entitled to it under a right of

preemption.”

xxx xxx xxx

12. In this connection, we may also refer to the decision

of this Court in Gulam Abbas v. State of U.P. [(1984) 1

SCC 81 : 1984 SCC (Cri) 35] In the said decision, this

Court has considered the scope and ambit of Articles 25

and 26 of the Constitution of India and also the

jurisdiction of this Court under Article 32 of the

Constitution of India. In the said decision, the question

which arose for consideration was that whether two

graves could be shifted to some other place for the

purpose of finding out some permanent solution to the

perennial problem of clashes between the two religious

communities. While dealing with the aforesaid issue,

this Court considered various fatwas issued by religious

heads, namely, Head Muftis and Shahi Imams from

Delhi, Banaras and Patna stating the position of law for

shifting the graves under the Shariat law.

13. After going through all those fatwas, this Court

in Gulam Abbas [(1984) 1 SCC 81 : 1984 SCC (Cri) 35]

found that: (SCC p. 86, para 6)

“6. … The common theme in all these fatwas is that

under the Shariat law respecting of graves is the

religious obligation of every Muslim, that shifting of

dead bodies after digging old graves in which they

are lying buried is not permissible and to do so

would amount to interference with their religious

rights.”

It was further found that such religious rights of every

person and every religion are, however, subject to

“public order”, the maintenance whereof is paramount in

the larger interest of the society. It was also held that if

it becomes necessary to shift graves in certain situations

and exigencies of public order, the same would surely

provide a requisite situation, especially as the

fundamental rights under Articles 25 and 26 are

expressly made subject to public order.”

[Emphasis supplied]

33. In Gulam Abbas and Others v. State of U.P. and Others,

(1984) 1 SCC 81, this Court held that:

“5. …..Articles 25 and 26 of the Constitution, on which

strong reliance was placed by counsel for the contesting

respondents representing the Sunni community in that

behalf, undoubtedly guarantee (a) to all persons

freedom of conscience and free profession, practice and

propagation of religion and (b) to every religious

denomination or any section thereof freedom to manage

its own affairs in matters of religion but both these

fundamental rights have been expressly made “subject

to public order, morality and health”. In other words, the

exercise of these fundamental rights is not absolute but

must yield or give way to maintenance of public order

and the impugned suggestion was mooted by the Court

and has now been found to be feasible by the Chairman

of the Committee in the larger interest of the society for

the purpose of maintaining public order on every

occasion of the performance of their religious ceremonies

and functions by members of both the sects…..

6. Counsel for the Sunnis relied upon five Fatwas

issued by their religious heads (Head Muftis and Shahi

Imams) from Delhi, Banaras and Patna stating the

position under Sheriat Law. The common theme in all

these Fatwas is that under Sheriat Law respecting of

graves is the religious obligation of every Muslim, that

shifting of dead bodies after digging old graves in which

they are lying buried is not permissible and to do so

would amount to interference with their religious rights.

True, this position under Sheriat Law cannot be doubted

but as explained earlier the religious rights of every

person and every religious denomination are subject to

“public order”, the maintenance whereof is paramount in

the larger interest of the society. For instance, the

ecclesiastical edict or right not to disturb an interred

corpse is not absolute as will be clear from Section

176(3) of Criminal Procedure Code which permits its

exhumation for the purpose of crime detection and this

provision is applicable to all irrespective of the personal

law governing the dead. In fact, quoting a Hadit, one of

the Fatwas relied upon by the contesting respondents

states “unnecessary shifting of graves is also not

permissible”…..”

[Emphasis supplied]

34. In Adi Saiva Sivachariyargal Nala Sangam and Others v.

Government of Tamil Nadu and Another, (2016) 2 SCC 725,

this Court held that:

“43. …..The rights guaranteed by Articles 25 and 26,

therefore, are circumscribed and are to be enjoyed

within constitutionally permissible parameters. Often

occasions will arise when it may become necessary to

determine whether a belief or a practice claimed and

asserted is a fundamental part of the religious practice

of a group or denomination making such a claim before

embarking upon the required adjudication. A decision on

such claims becomes the duty of the constitutional court.

It is neither an easy nor an enviable task that the courts

are called to perform. Performance of such tasks is not

enjoined in the court by virtue of any ecclesiastical

jurisdiction conferred on it but in view of its role as the

constitutional arbiter. Any apprehension that the

determination by the court of an essential religious

practice itself negatives the freedoms guaranteed by

Articles 25 and 26 will have to be dispelled on the

touchstone of constitutional necessity. Without such a

determination there can be no effective adjudication

whether the claimed right is in conformity with public

order, morality and health and in accord with the

indisputable and unquestionable notions of social

welfare and reforms. 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.”

[Emphasis supplied]

35. Thus, from the aforesaid, it is evident that the religious rights

of every person and every religion are, however, subject to the

“public order”, the maintenance whereof is paramount in the

larger interest of the society. Both these fundamental rights

have been expressly made “subject to public order, morality

and health”. The exercise of these fundamental rights is not

absolute but must yield or give way to maintenance of public

order, morality and health.

Right to have a decent burial as enshrined under Article 21 of

the Constitution

36. In Pt. Parmanand Katara (supra), this Court observed that:

“3. …..right to dignity and fair treatment under Article

21 of the Constitution of India is not only available to a

living man but also to his body after his death…..”

37. In Ashray Adhikar (supra), this Court held that:

“1. ..…On the basis of that letter, an important question

as to the right of homeless deceased, to have a decent

burial, as per their religious belief and the corresponding

obligation of the State towards such people having

arisen, the letter was treated as a writ petition and was

listed for hearing. The letter prayed for an intervention

by this Court and to issue necessary directions to all

those concerned, so that a person dying on the road,

can at least claim for a decent burial or cremation as a

person belonging to the society. On the basis of that

letter, notices have been issued. The Deputy

Commissioner of Police (Headquarters) has filed a

counteraffidavit, indicating the role of the police in such

matters. On behalf of Municipal Corporation of Delhi, Dr

Satpal, Deputy Municipal Health Officer has filed an

affidavit, indicating therein that when a person dies on

the streets and the dead body remains unclaimed, it is

handed over to MCD by the Delhi Police and thereafter

the dead body is cremated at electric crematorium, Bela

Road by the Health Department of MCD, free of cost. In

case the dead body is that of a Muslim, then the same is

buried in a burial ground near Delhi Gate by the Waqf

Board and Municipal Corporation of Delhi bears the

expenses. On behalf of the Ashray Adhikar Abhiyan, a

rejoinderaffidavit was filed. In course of hearing, the

Court wanted from the petitioner, as to what guidelines

the petitioner wants from the Court and pursuant to the

same, the proposed guidelines were submitted by the

petitioner. On going through those guidelines, we find

that apart from claiming a decent burial, the proposed

guidelines cover a vast field, which we apprehend,

would not come within the purview of the original

prayer.….”

38. In Ram Sharan Autyanuprasi (supra), this Court opined

that:

13. …..It is true that life in its expanded horizons today

includes all that give meaning to a man's life including

his tradition, culture and heritage and protection of that

heritage in its full measure would certainly come within

the compass of an expanded concept of Article 21 of the

Constitution. Yet, when one seeks relief for breach of

Article 21, one must confine oneself to some direct, overt

and tangible act which threatens the fullness of his life

or the lives of others in the community.”

39. In Vineet Ruia (supra), the Calcutta High Court held that:

“20. By and large, whether it is for a theist or atheist,

freedom of conscience and free profession and practice

of religion is protected under Clause (1) of Article 25 of

the Constitution. The term “religion” in that Clause need

not necessarily be linked to any particular religion as is

understood as a religious denomination. It is a matter of

faith and of one's own conscience which could trigger

the profession and practice of what may be religion in

the larger sense to a particular individual. With this

concept in mind, it needs to be delineated that it is not

the religious practices of the different religious

denominations which matter in such instances. It is a

matter of connectivity with the person who has died and

the near relatives may be in whatever degree of

relationship. Fundamentally, human relationship

between the parent and child, husband and wife,

grandparent and grandchild, etc. is not based on any

religious tenet. It is a matter of faith and conscience of

every individual. If such a person is to take recourse to

any practice and free profession on the foundation of

freedom of conscience in terms of Clause (1) of Article 25

of the Constitution of India, it could get abridged only by

the reciprocal covenant that such activity should be

subject to public order, morality and health and to other

provisions of Part III of the Constitution. This is the

inbuilt mode of controlling such activities even in terms

of Clause (1) of Article 25. The eligibility of a person to

perform the funeral rites, be it connected to cremation or

burial, may be sometimes guided by factors which may

be akin to accepted practice even in religious

denominations. If we were to look at the varied practices

among the Hindus as a whole or different

denominations of Hindus, one thing is clearly certain;

the facility to provide ritualistic offerings by way of

water, flowers or even certain grains are quite often

seen as fundamentally for the satisfaction of the person

making such offer to the dead before burial/cremation,

as the case may be. Post cremation rites including,

receiving the mortal remains in the form of ashes and

bones which are treated as sacred to the near relatives

of the departed and further handling of those materials

in accordance with faith and belief also stands accepted

in such communities (profitable reading in this regard

can be had from Garuda Purana, Vishnu Purana and

other ancient Hindu texts and scriptures). In so far as

Christians are concerned, if one were to look at different

denominations, it can be seen that there are practices,

which may with slight variations, generally provide for

prayers before the dead bodies are disposed of by

burial and by offering prayers even after disposal on

different dates and times depending upon the faith,

belief and practice in different Churches. A perusal of

canons would show that different ritualistic processes

are delineated for such matters. We have mentioned it

only to indicate that there are different practices

available. In so far as the Muslims are concerned,

whatever be the difference in beliefs and practices

among the Hanafis, who are treated as a majority group

of Sunnis in India, on one hand, and the Shias on the

other hand, one clear thread of connectivity is the faith

and belief that the disposal of human remains is a must

as well as post Kabar (Burial) rituals (Certain passages

from AlBahrurRaiq will buttress this aspect). The

family also intends to have its own practices carried

forward to the extent it relates to their faith and belief.

We refer to all these only to demonstrate that by and

large the Indian community always has the desire for

intricate practices in the form of rituals with the

participation of near relatives of a deceased, following

what could be permissible under given

circumstances…..

xxx xxx xxx

23. …..the right of the family of a Covid19 victim to

perform the last rites before the cremation/burial of the

deceased person is a right akin to Fundamental Right

within the meaning of Article 21 of the Constitution of

India. While exercising their power to impose restrictions

on citizens in their way of life in the wake of outbreak of

an endemic like Covid19, a fine balance must be struck

by the State and the local selfgovernment institutions

so that the aforesaid right of a citizen to perform the

obsequies of his near and dear ones does not stand

abridged or abrogated excepting for very compelling

reasons…..”

[Emphasis supplied]

40. In Anandhi Simon v. State of Tamil Nadu, Represented by

Chief Secretary to Government and Others, (2021) 3 Mad

LJ 479, the Madras High Court held that:

“16. The protection of life and personal liberty which is

guaranteed under Article 21 of the Constitution of India

has been interpreted by the Hon'ble Supreme Court in

many cases. There are lot of rights which are included

in Article 21 such as right to privacy, right against

solitary confinement, right to legal aid, right to speedy

trial etc. The Hon'ble Supreme Court in many cases has

also observed and interpreted that right to have a

decent burial is also included in Article 21 of the

Constitution of India. The right to human dignity is not

restricted to living human being but is available even

after the death also…..

xxx xxx xxx

34. Insofar as the exhumation for the purpose of

enabling the family members of the deceased to perform

their religious ceremonies and to bury the dead body at

an appropriate place of their choice is concerned, there

is a legislative vacuum. Even though under Section 176

Cr.P.C. and Section 174(1) Cr.P.C, the Magistrate and

the Officerincharge of the Police Station are having the

powers to order for exhumation, those cases do not deal

with the case on hand, where the buried person or his

family members are not involved in any criminal offence.

35.(d) In Common Cause v. Union of India reported

in (2008) 5 SCC 511, the Hon'ble Supreme Court

observed that if there is a buffer zone unoccupied by the

legislature or executive which is detrimental to the

public interest, judiciary must occupy the field to subserve public interest.

36. The case on hand also falls under the

aforementioned category where there is a legislative

vacuum. There is no legislation in India dealing with

cases where family members seek for exhumation of the

dead body for the purpose of burying the same and for

performing the ceremonies in the place meant for their

religious faith.”

[Emphasis supplied]

41. In Pradeep Gandhy (supra), the Bombay High Court held

that:

“38. …..In the system of governance prevailing in our

country, it is highly unlikely that a Governmental

decision would please each and every citizen. While

dissent on valid grounds could contribute to newer

developments in the matter of framing of policies,

resentment of the nature put forth by the Petitioners in

WPI leaves a bad taste in the mouth. We have found

the petitioners to be rather insensitive to others' feelings.

The founding fathers of the Constitution felt that the

people of India would strive to secure to all its citizens

FRATERNITY, assuring the dignity of an individual. That

is the preambular promise….. we find little reason to

deprive the dead of the last right, i.e., a decent burial

according to his/her religious rites…..”

42. In S. Sethu Raja (supra), the Madras High Court held that:

“18. The fundamental right to life and personal liberty

guaranteed under Article 21 of the Constitution has

been given an expanded meaning by Judicial

pronouncements. The right to life has been held to

include the right to live with human dignity. By our

tradition and culture, the same human dignity (if not

more), with which a living human being is expected to be

treated, should also be extended to a person who is

dead. The right to accord a decent burial or cremation to

the dead body of a person, should be taken to be part of

the right to such human dignity...”

43. In Vikash Chandra @ Guddu Baba v. The Union of India &

Ors., 2008 SCC OnLine Pat 905 : (2008) 2 PLJR 127, the

Patna High Court held that:

“5. …..It is expected that Patna Medical College &

Hospital Officials or the State Officials will see to it that

the disposal of unclaimed and unidentified dead bodies

are done in accordance with law with utmost respect to

the dead and in case it is verifiable the last rites may be

in accordance with known faith of the deceased.”

44. In Ramji Singh @ Mujeeb Bhai v. State of U.P. & Ors.,

(2009) 5 All LJ 376, the Allahabad High Court held that:

“17. We thus find that the word and expression ‘person’

in Art 21, would include a dead person in a limited

sense and that his rights to his life which includes his

right to live with human dignity, to have an extended

meaning to treat his dead body with respect, which he

would have deserved, had he been alive subject to his

tradition culture and the religion, which he professed.

The State must respect a dead person by allowing the

body of person to be treated with dignity and unless it is

required for the purposes of establishing a crime to

ascertain the cause of death and be subjected to

postmortem or for any scientific investigation, medical

education or to save the life of another person in

accordance with law, the preservation of the dead body

and disposal in accordance with human dignity.”

Scope and Powers of the Supreme Court under Article 136 of

the Constitution

45. Article 136 of the Constitution empowers the Supreme Court

to grant special leave in its discretion against any judgment,

decree, determination, sentence or order in any cause or

matter passed or made by any court or tribunal except by any

court or tribunal constituted by or under any law relating to

the armed forces. It reads as under:

“136. Special leave to appeal by the Supreme Court.—(1)

Notwithstanding anything in this Chapter, the Supreme

Court may, in its discretion, grant special leave to

appeal from any judgment, decree, determination,

sentence or order in any cause or matter passed or

made by any court or tribunal in the territory of India.

(2) Nothing in clause (1) shall apply to any judgment,

determination, sentence or order passed or made by any

court or tribunal constituted by or under any law

relating to the Armed Forces.”

46. The jurisdiction conferred by Article 136 is divisible into two

stages: the first stage is upto the disposal of prayer for the

special leave to file an appeal and the second stage

commences if and when the leave to appeal is granted and the

special leave petition is converted into an appeal. The legal

position as summarised by this Court

in Kunhayammed v. State of Kerala, (2000) 6 SCC 359;

affirmed in Khoday Distilleries Ltd. v. Sri Mahadeshwara

Sahakara Sakkare Karkhane Ltd., (2019) 4 SCC 376,

regarding the scope of two stages reads as under:

“(a) While hearing the petition for special leave to

appeal, the Court is called upon to see whether the

petitioner should be granted such leave or not.

While hearing such petition, the Court is not

exercising its appellate jurisdiction; it is merely

exercising its discretionary jurisdiction to grant or

not to grant leave to appeal. The petitioner is still

outside the gate of entry though aspiring to enter

the appellate arena of the Supreme Court. Whether

he enters or not would depend on the fate of his

petition for special leave.

(b) If the petition seeking grant of leave to appeal is

dismissed, it is an expression of opinion by the

Court that a case for invoking appellate jurisdiction

of the court was not made out.

jurisdiction of the court stands invoked; the gate for

entry in appellate arena is opened. The petitioner is

in and the respondent may also be called upon to

face him, though in an appropriate case, in spite of

having granted leave to appeal, the Court may

dismiss the appeal without noticing the respondent.

(d) In spite of a petition of special leave to appeal

having been filed, the judgment, decree or order

against which leave to appeal has been sought for,

continues to be final, effective and binding as

between the parties. Once leave to appeal has been

granted, the finality of the judgment, decree or

order appealed against is put in jeopardy though it

continues to be binding and effective between the

parties unless it is a nullity or unless the Court may

pass a specific order staying or suspending the

operation or execution of the judgment, decree or

order under challenge. [ Id, 372, para 14.]”

47. In Pritam Singh v. State, AIR 1950 SC 169, the Constitution

Bench of this Court has explained the scope and powers of

this Court under Article 136 of the Constitution in detail:

“9. On a careful examination of Article 136 along with

the preceding article, it seems clear that the wide

discretionary power with which this Court is invested

under it is to be exercised sparingly and in exceptional

cases only, and as far as possible a more or less

uniform standard should be adopted in granting special

leave in the wide range of matters which can come up

before it under this article. By virtue of this article, we

can grant special leave in civil cases, in criminal cases,

in income tax cases, in cases which come up before

different kinds of tribunals and in a variety of other

cases. The only uniform standard which in our opinion

can be laid down in the circumstances is that Court

should grant special leave to appeal only in those cases

where special circumstances are shown to exist. The

Privy Council have tried to lay down from time to time

certain principles for granting special leave in criminal

cases, which were reviewed by the Federal Court

in Kapildeo v. King. It is sufficient for our purpose to say

that though we are not bound to follow them too rigidly

since the reasons, constitutional and administrative,

which sometimes weighed with the Privy Council, need

not weigh with us, yet some of those principles are

useful as furnishing in many cases a sound basis for

invoking the discretion of this Court in granting special

leave. Generally speaking, this Court will not grant

special leave, unless it is shown that exceptional and

special circumstances exist, that substantial and grave

injustice has been done and that the case in question

presents features of sufficient gravity to warrant a

review of the decision appealed against. Since the

present case does not in our opinion fulfil any of these

conditions, we cannot interfere with the decision of the

High Court, and the appeal must be dismissed.”

[Emphasis supplied]

48. A threeJudge Bench of this Court in the case of Hem Raj,

Son of Devilal Mahajan of Bijainagar, Condemned

Prisoner, at Present Confined in the Central Jail, Ajmer v.

State of Ajmer, AIR 1954 SC 462, held as under:

“2. Unless it is shown that exceptional and special

circumstances exist that substantial and grave injustice

has been done and the case in question presents

features of sufficient gravity to warrant a review of the

decision appealed against, this Court does not exercise

its overriding powers under Article 136(1) of the

Constitution and the circumstance that because the

appeal has been admitted by special leave does not

entitle the appellant to open out the whole case and

contest all the findings of fact and raise every point

which could be raised in the High Court. Even at the

final hearing only those points can be urged which are

fit to be urged at the preliminary stage when the leave

to appeal is asked for. The question for consideration is

whether this test is satisfied in either of these two

appeals. After hearing the learned counsel in both the

appeals we are satisfied that none of them raise any

questions which fall within the rule enunciated above.”

[Emphasis supplied]

49. The Constitution Bench of this Court in the case of P.S.R.

Sadhanantham v. Arunachalam and Another, (1980) 3

SCC 141, has explained the Article 136 of the Constitution as

under:

“7. …..In express terms, Article 136 does not confer a

right of appeal on a party as such but it confers a wide

discretionary power on the Supreme Court to interfere in

suitable cases. The discretionary dimension is

considerable but that relates to the power of the court.

The question is whether it spells by implication, fair

a procedure as contemplated by Article 21. In our view,

it does. Article 136 is a special jurisdiction. It is

residuary power; it is extraordinary in its amplitude, its

limit, when it chases injustice, is the sky itself. This

Court functionally fulfils itself by reaching out to

injustice wherever it is and this power is largely derived

in the common run of cases from Article 136. Is it merely

a power in the court to be exercised in any manner it

fancies? Is there no procedural limitation in the manner

of exercise and the occasion for exercise? Is there no

duty to act fairly while hearing a case under Article 136,

either in the matter of grant of leave or, after such grant,

in the final disposal of the appeal? We have hardly any

doubt that here is a procedure necessarily implicit in the

power vested in the summit court. It must be

remembered that Article 136 confers jurisdiction on the

highest court. The founding fathers unarguably intended

in the very terms of Article 136 that it shall be exercised

by the highest judges of the land with scrupulous

adherence to judicial principles well established by

precedents in our jurisprudence. Judicial discretion is

canalised authority, not arbitrary eccentricity. Cardozo,

with elegant accuracy, has observed: [Benjamin

Cardozo : The Nature Of The Judicial Process, Yale

University Press (1921)]

“The Judge, even when he is free, is still not wholly

free. He is not to innovate at pleasure. He is not a

knighterrant roaming at will in pursuit of his own

ideal of beauty or of goodness. He is to draw his

inspiration from consecrated principles. It is not to

yield to spasmodic sentiment, to vague and

unregulated benevolence. He is to exercise a

discretion informed by tradition, methodized by

analogy, disciplined by system, and subordinated to

‘the primordial necessity of order in the social life’.

Wide enough in all conscience is the field of discretion

that remains.”

8. It is manifest that Article 136 is of composite

structure, is powercumprocedure — power in that it

vests jurisdiction in the Supreme Court, and procedure

in that it spells a mode of hearing. It obligates the

exercise of judicial discretion and the mode of hearing so

characteristic of the court process. In short, there is an

inbuilt prescription of power and procedure in terms of

Article 136 which meets the demand of Article 21.

9. We may eye the issue slightly differently. If Article 21

is telescoped into Article 136, the conclusion follows that

fair procedure is imprinted on the special leave that the

court may grant or refuse. When a motion is made for

leave to appeal against an acquittal, this Court

appreciates the gravity of the peril to personal liberty

involved in that proceeding. It is fair to assume that

while considering the petition under Article 136 the court

will pay attention to the question of liberty, the person

who seeks such leave from the court, his motive and his

locus standi and the weighty factors which persuade

the court to grant special leave. When this conspectus of

processual circumstances and criteria play upon the

jurisdiction of the court under Article 136, it is

reasonable to conclude that the desideratum of fair

procedure implied in Article 21 is adequately answered.

xxx xxx xxx

11. The wider the discretionary power the more sparing

its exercise. Times out of number this Court has stressed

that though parties promiscuously “provoke” this

jurisdiction, the court parsimoniously invokes the power.

Moreover, the court may not, save in special situations,

grant leave to one who is not eo nomine a party on the

record. Thus, procedural limitations exist and are

governed by well worn rules of guidance.”

[Emphasis supplied]

50. Thus, the 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. The wide

discretionary power with which this Court is invested under

Article 136 is to be exercised sparingly and in exceptional

cases only. Keeping these principles in mind, we need to

decide whether the relief prayed for by the appellant should be

granted or not?

Condition of the Body after Burial

51. Even the writ court had allowed disinterment subject to the

condition that the body should be found to be in a deliverable

state. It further stated that if the body is found to be highly

putrefied then it may pose a risk to public health and hygiene.

In such a situation the family of the deceased would only be

allowed to perform the last rites in the graveyard itself.

52. It has been argued on behalf of the appellant that the

respondents themselves had disinterred the dead bodies of two

persons, who were killed along with the appellant’s son. One of

them was shot dead by a foreign militant, while the other was

killed during the crossfire and they were disinterred within two

days of burial on the directions of District Magistrate Kupwara

and handed over to their next of kin for performing their last

rites in their own way. It can be easily assumed that the

bodies must not have decomposed much in two days thereby

leaving them in a deliverable state.

53. The appellant himself has relied on an expert, namely, Dr.

Arpad A. Vass, a Senior Staff Scientist at the Oak Ridge

National Laboratory and Adjunct Associate Professor at the

University of Tennessee in Forensic Anthropology, who has

stated that decomposition of the human body begins around 4

minutes after a person dies. The expert has said that the body

starts to liquify after one 1 month of decomposition. As each

day passes by, more putrefaction is undergone by the body.

Even the learned Single judge by order dated 27.05.2022, had

mentioned that the dead body of the deceased must be in

advanced stage of putrefaction. 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.

54. It goes without saying that the right to live a dignified life as

enshrined under Article 21 of the Constitution is not only

available to a living person but also to the “dead”. Even a dead

person has the right of treatment to his body with respect and

dignity which he would have deserved had he been alive,

subject to his tradition, culture and religion which he

professed. 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. We are of the view

that it would have been appropriate and in fitness of things to

hand over the dead body of the deceased to the family

members, more particularly, when a fervent request was made

for the same. It is of course true that for any compelling

reasons or circumstances or issues relating to public order

etc. more particularly in cases of encounter with the militants

the agency concerned may decline to part with the body. These

are all very sensitive matters involving security of 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, with the help of the Auqaf Committee

at the Wadder Payeen Graveyard. We are convinced of one

thing that the body was buried with dignity. There is nothing

on record to indicate that the dead body was dealt with in any

manner insulting or hurting the religious feelings of the family

members.

55. However, what is not appealing to us is the vociferous

submission on behalf of the appellant that with a view to

remedy the wrong, as alleged, this Court should direct the

respondents to exhume the body and permit the appellant and

his family members to thereafter perform the rituals. It is for

this very wrong as alleged that the High Court has awarded a

monetary compensation of the amount of Rs. 5,00,000/.

56. 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. 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.

57. The respondents have 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. 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

law, more particularly, keeping in mind the doctrine of Rule of

Law.

58. We take notice of the fact that India has no legislation relating

to exhumation except Section 176(3) of the CrPC. As noticed

by the Madras High Court in the case of Anandhi Simon

(supra), very few countries are having a 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.

59. The Union of India may consider enacting an appropriate

legislation on exhumation so as to tackle the situations like

the one on hand.

60. 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.

61. In the result, this appeal fails and is hereby dismissed with no

order as to costs.

62. Pending application, if any, also stands disposed of.

…………………………J.

(SURYA KANT)

…………………………J.

(J.B. PARDIWALA)

New Delhi;

September 12, 2022

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