Mohammad Latief Magrey v. the Union Territory of Jammu and Kashmir & Ors.
J. B. PARDIWALA, J.
1. Leave granted.
2. “The dead are to rest where they have been lain unles s
reason of substance is brought forward for disturbing their r epose.”
- Justice Cardozo Yome v. Gorman, 152 N.E. 126, 129 (N.Y.
1926).
3. The leading case on disinterment in the United Sta tes 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 imprecatio n on
the tomb at Stratford, “Curst be he that moves my bon es,”
whether it be Shakespeare’s own or some reverent fr iend’s,
expresses the universal sentiment of humanity, not only again st
profanation, but even disturbance. When a case comes i nto
court, the chancellor will regard this sentiment, and consi der
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 direct ed 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
241
son of the appellant herein. In connection with the said incident, a First
Information Report No. 193/2021 was registered at the Saddar Pol ice
Station for the offences punishable under Sections 307/120-B IPC, 7/27
of the Arms Act and 16, 18, 20 resply of the ULA (P) Act. Dur ing 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 medico-legal
formalities. After conducting the post-mortem 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 i n 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 w as
there any demand for handing over of the dead body from any quarter.
However, it is the case of the appellant herein that so f ar 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 Wadd er Payeen
Graveyard. It is his case that he was informed by the Police S tation 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 reache d the
Police Station at Saddar, where he was told that his son Amir Magrey
was a militant and was killed along with three other associ ates 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:
MOHAMMAD LATIEF MAGREY v. THE UNION TERRITORY
OF JAMMU AND KASHMIR & ORS. [J. B. PARDIWALA, J.]
“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 join t
encounter by them on 15.11.2021 at Hyderpora area o f
Budgam in Kashmir to the petitioner who happens to b e 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 her ein to
make necessary arrangements for the disinterment of the body/remains
of the deceased Amir Magrey from the Wadder Payeen Graveya rd 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 unde r
Article 21 of the Constitution of India. The parents and close
relations of the deceased are well within their right to dem and
the dead body of their dear one to be cremated or buried as
per their traditions, religious obligations and religious bel ief.
This right would also include the choice of the relati ves 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 rig ht of
the citizen to live with human dignity and this right to live with
human dignity even extends after death though in a li mited
extent. Viewed thus, the right of the petitioner to claim the
dead body of his son for performing last rites in his own w ay
and in accordance with local traditions, religious obligations
and religious faith, which the deceased professed durin g his
life time, cannot be disputed. But the question that ne eds to
be addressed in the context of present controversy is whethe r
243
the State can deny this right in the name of preven ting 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 t he larger
public interest and to prevent the situation of law and or der
going out of hand. It is submitted that respondents have
witnessed such situations in the past and, therefor e, have
decided not to handover the dead bodies of the terrorists kil led
in encounters to their next of kin for cremation or burial to
prevent the law and order situation getting worsene d. The
respondents, however, have not come clear as to why the
dead bodies of two of the four killed in the encounter, name ly,
Altaf Ahmad Bhat and Dr. Mudasir Gul were exhumed an d
handed over to their relatives for their last rites in the
graveyards of their choice and why the similar right claim ed
by the petitioner was denied. The respondents have t ried to
draw distinction by submitting that as per the inves tigation
conducted by the SIT, the deceased son of the petitioner w as
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 dist inction
so made by the respondents. It transpires that due to p ublic
pressure and demand by the relatives of the two dec eased
namely, Altaf Ahmad Bhat and Dr. Mudasir Gul, the
respondents relented and permitted their dead bodie s to be
exhumed and handed over to their relatives. Since t he
petitioner was a resident of Gool, a remote village in Jamm u
Province and did not much say in the Valley and, therefo re,
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 br ought
to the notice of this Court. The decision of the res pondents
not to allow the petitioner to take away dead body of his son
to his native village for last rites was per-se arb itrary 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. W hile it
MOHAMMAD LATIEF MAGREY v. THE UNION TERRITORY
OF JAMMU AND KASHMIR & ORS. [J. B. PARDIWALA, J.]
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 n ot to
handover the remains of the dead body to the petitioner who
is clamoring at the top of his voice to get even the rem ains of
the dead body of his son so that he could bury him i n his
native graveyard in the presence of relatives and a fter
following all religious obligations. The apprehension of law
and order getting vitiated at this point of time also appear s 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, i t is not
difficult for the respondents to make necessary arrangement s
for exhumation of the dead body of Amir Latief Magrey , the
son of the petitioner and transport the same in proper escor t
to Village Thatharka Seripora Tehsil Gool District R amban.
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 co unsel, is
even ready to undertake that he will abide by all th e terms
and conditions that may be imposed by the respondents wit h
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 t his
petition of the father of the deceased Amir Latief Magr ey and
direct the respondents to make arrangements for exhumation
of the body/remains of the deceased Amir Latief Magre y from
the Wadder Payeen graveyard in presence of the petiti oner.
The respondents shall also make appropriate arrange ment
for transportation of the dead body to the village of the
petitioner for according burial in his native grave yard in
accordance with the traditions, religious obligatio ns and
religious faith which the deceased professed during h is life
time provided it is in deliverable state. The responden ts are
free to impose any reasonable terms and conditions in respe ct
245
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 putrefact ion,
as such, it would be desirable that the respondents act with
promptitude and do not waste any further time. Howeve r, if
the body is highly putrefied and is not in deliverable state o r
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 bel ief in the
Wadder Payeen graveyard itself. In that situation, t he State
shall pay to the petitioner a compensation of Rs. 5 lakhs for
deprivation of his right to have the dead body of h is son
and give him decent burial as per family traditions, relig ious
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 t o
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
MOHAMMAD LATIEF MAGREY v. THE UNION TERRITORY
OF JAMMU AND KASHMIR & ORS. [J. B. PARDIWALA, J.]
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. Accordin g to
the learned Advocate General, the writ court misdirected itse lf
while considering the controversy and did not consid er 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 Relig ious
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 Jana za
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 i nsist
for exhumation of the body of the deceased for perfo rmance
of last rites by the writ petitioner/respondent no. 1 herei n.
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 ina smuch
as in view of uncontroverted/unopposed stand taken by
appellants before the Writ Court, that last rites of d eceased
stand already performed while burying deceased at Wad der
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 openi ng
the grave of the deceased, cannot be accepted and permitte d,
247
firstly, in view of pleading of writ petitioner tha t the dead
body would start decomposing immediately after burial , and
secondly in view of the statement made by the writ petiti oner
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 a s
granted by the Writ Court is concerned, it needs to be
appreciated that appellants admittedly did not prov ide
opportunity to respondent no. 1 and his family to associate i n
the burial and performance of last religious rites of the
deceased. Appellants prima facie have acted unfairl y
inasmuch as unreasonably in this regard notwithstanding the
allegation of appellants that person of deceased wa s a
terrorist even if it may be assumed, as such, that the de ceased
relinquished his right to be buried after performance o f last
rites performed by his family members in accordance with the
faith professed by him, yet the said right of buria l and
performance of last religious rituals of deceased availabl e 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 r ituals of
deceased by the appellants admittedly without there being any
policy/guideline, as such cannot be endorsed in law, in t hat,
ours is a Welfare State acknowledged by the whole g lobe.
The appellants herein also could not have overlooke d the
background of the family of respondent no. 1 and his family’s
role in fighting terrorism. The Writ Court having regard to t he
aforesaid position has rightly awarded the compensati on 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:
MOHAMMAD LATIEF MAGREY v. THE UNION TERRITORY
OF JAMMU AND KASHMIR & ORS. [J. B. PARDIWALA, J.]
“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 COVID-19 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 Cou rt
did not approve the decision of the learned Single Judge to direct the
respondents herein to exhume the body of the deceased and thereb y
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,
249
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 mil itant, the
police should have handed over the dead body to the family mem bers
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 Heal th
and Family Welfare, Government of West Bengal, AIR
2020 Cal 308,
(6) Ram Sharan Autyanuprasi v. Union of India, AIR 1989
SC 549,
MOHAMMAD LATIEF MAGREY v. THE UNION TERRITORY
OF JAMMU AND KASHMIR & ORS. [J. B. PARDIWALA, J.]
(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 p rays
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 is sues relating to
public order etc. and no interference is warranted at th e 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 r ound 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) N o.
10760/2022 are reproduced herein below:
“Learned counsel for the petitioner at the outset states t hat
he does not press for the first relief granted by the lear ned
Single Judge of the High Court regarding exhumation and
handing over of the body remains of his deceased son.”
251
5. Pursuant to the above, the Hon’ble High Court af ter
considering the said submission of the petitioner herein passed
the present Impugned Order. Relevant extract of the Im pugned
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
body-remain of his deceased son. As such, the appearin g
counsel for parties were heard on the rest of the re liefs
identified in the order of the Apex Court.”
6. Further, the Hon’ble High Court whilst passing the pre sent
impugned order was pleased to allow the petitioners he rein
and his family members (maximum 10 persons) to perf orm
Fatiha Khawani (religious rituals/prayers after burial) of t he
deceased at Wadder Payeen Graveyard, on the date and time
to be decided in consultations with respondent no. 1, subjec t
to taking into account security measures which may be
required to be put in place in as much as the COVID -19
guidelines.
7. It is submitted that the respondent is agreeable to the
abovementioned relief granted by the Hon’ble High C ourt
with regards to performing Fatiha Khawani (religious ritual s/
prayers after burial) subject to reasonable condition s being
imposed by the concerned District Magistrate in the i nterest
of public health, security and maintenance of law and order.
8. It is humbly submitted that further relief sough t 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 sta te
security, law and order, public health & hygiene ap art from
the fact that the same will open a floodgate of similar r equests
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 be fore
single bench and Divisional Bench of JK High Court.
MOHAMMAD LATIEF MAGREY v. THE UNION TERRITORY
OF JAMMU AND KASHMIR & ORS. [J. B. PARDIWALA, J.]
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 hatc hing
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 anti- national 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 gun- battle/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.
253
14. Therefore, in light of the submissions made herein- above,
it is respectfully submitted that the prayer of exhum ation of
the mortals of the deceased may not be granted and the
direction of allowing the petitioners herein and fa mily
(maximum 10 persons) to perform Fatiha Khawani (religious
rituals/prayers after burial) of the deceased at Gr aveyard,
on the date and time to be decided in consultations with
respondent no. 1, subject to taking into account se curity
measures which may be required to be put in place in as much
as the COVID-19 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 me rit in this
appeal, the same may be dismissed.
Analysis
26. Having heard the learned counsel appearing for the partie s
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 pr ay
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?
MOHAMMAD LATIEF MAGREY v. THE UNION TERRITORY
OF JAMMU AND KASHMIR & ORS. [J. B. PARDIWALA, J.]
d. Whether the High Court in appeal committed any su bstantial
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 d ead to
‘rest in peace’ and is generally regarded as a forbidden or sacril egious
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 dea th,
poisoning etc. exhumation may be carried out for the purpose of p ost-
mortem examination.
30. In the instant case, after the deceased was killed in the
Hyderpora encounter, the authorities performed the last r ites 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 Gr aveyard, in
presence of the Executive Magistrate, Zachaldara. The last ri tes 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 decease d in the
grave, reciting the verses from the Holy Book Quaran. Howev er, the
appellant asserts that it was his privilege to perform the last rites of his
son as a father.
255
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
Fatawa-e-Alamgiri 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 pre-emption.”
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 Cou rt has
considered the scope and ambit of Articles 25 and 26 of the
Constitution of India and also the jurisdiction of t his Court
under Article 32 of the Constitution of India. In t he 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 religi ous
communities. While dealing with the aforesaid issue, this Court
considered various fatwas issued by religious heads, nam ely,
Head Muftis and Shahi Imams from Delhi, Banaras and Patna
stating the position of law for shifting the graves u nder the
Shariat law.
13. After going through all those fatwas, this Court in Gulam
Abbas [(1984) 1 SCC 81 : 1984 SCC (Cri) 35] found th at:
(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
MOHAMMAD LATIEF MAGREY v. THE UNION TERRITORY
OF JAMMU AND KASHMIR & ORS. [J. B. PARDIWALA, J.]
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 responde nts
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 free dom
to manage its own affairs in matters of religion but both the se
fundamental rights have been expressly made “subje ct 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 l arger
interest of the society for the purpose of maintainin g public
order on every occasion of the performance of their religi ous
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 u nder
Sheriat Law respecting of graves is the religious obl igation
of every Muslim, that shifting of dead bodies after digging
old graves in which they are lying buried is not permiss ible
257
and to do so would amount to interference with their religiou s
rights. True, this position under Sheriat Law canno t be
doubted but as explained earlier the religious rights of e very
person and every religious denomination are subject to “public
order”, the maintenance whereof is paramount in the l arger
interest of the society. For instance, the ecclesiasti cal 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 irrespectiv e of the
personal law governing the dead. In fact, quoting a Hadit,
one of the Fatwas relied upon by the contesting respondent s
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
MOHAMMAD LATIEF MAGREY v. THE UNION TERRITORY
OF JAMMU AND KASHMIR & ORS. [J. B. PARDIWALA, J.]
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 int erest of
the society. Both these fundamental rights have been express ly made
“subject to public order, morality and health”. The exerci se of these
fundamental rights is not absolute but must yield o r give way to
maintenance of public order, morality and health.
Right to have a decent burial as enshrined under Article
21 of theConstitution
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 buri al, as
per their religious belief and the corresponding obligation of
the State towards such people having arisen, the le tter was
treated as a writ petition and was listed for hearing. The letter
prayed for an intervention by this Court and to issue necessar y
directions to all those concerned, so that a person dyi ng 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 o f
Police (Headquarters) has filed a counter-affidavit, indicating
the role of the police in such matters. On behalf of Munic ipal
Corporation of Delhi, Dr Satpal, Deputy Municipal H ealth
Officer has filed an affidavit, indicating therein that when a
person dies on the streets and the dead body remain s
unclaimed, it is handed over to MCD by the Delhi Police and
259
thereafter the dead body is cremated at electric cremat orium,
Bela Road by the Health Department of MCD, free of cost.
In case the dead body is that of a Muslim, then the s ame 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 rejoinder-affid avit
was filed. In course of hearing, the Court wanted from the
petitioner, as to what guidelines the petitioner wants from t he
Court and pursuant to the same, the proposed guidelines wer e
submitted by the petitioner. On going through those guidelines ,
we find that apart from claiming a decent burial, the propos ed
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 tr adition,
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 threate ns
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, freed om
of conscience and free profession and practice of religion is
protected under Clause (1) of Article 25 of the Constit ution.
The term “religion” in that Clause need not necessar ily 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 pr actice
of what may be religion in the larger sense to a pa rticular
individual. With this concept in mind, it needs to be delineate d
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 th e near
relatives may be in whatever degree of relationship .
MOHAMMAD LATIEF MAGREY v. THE UNION TERRITORY
OF JAMMU AND KASHMIR & ORS. [J. B. PARDIWALA, J.]
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 f aith 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 Art icle 25
of the Constitution of India, it could get abridged only by th e
reciprocal covenant that such activity should be su bject to
public order, morality and health and to other provisio ns of
Part III of the Constitution. This is the inbuilt m ode of
controlling such activities even in terms of Clause (1) of Article
25. The eligibility of a person to perform the funeral rit es, be
it connected to cremation or burial, may be sometimes guided
by factors which may be akin to accepted practice ev en 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 certa in; the
facility to provide ritualistic offerings by way of w ater, flowers
or even certain grains are quite often seen as fundamentally
for the satisfaction of the person making such offe r to the
dead before burial/cremation, as the case may be. P ost
cremation rites including, receiving the mortal remains i n the
form of ashes and bones which are treated as sacred to t he
near relatives of the departed and further handling of tho se
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 fa r as
Christians are concerned, if one were to look at di fferent
denominations, it can be seen that there are practices, which
may with slight variations, generally provide for p rayers
before the dead bodies are disposed of by burial an d by
offering prayers even after disposal on different d ates and
times depending upon the faith, belief and practice in di fferent
Churches. A perusal of canons would show that diffe rent
ritualistic processes are delineated for such matters. We have
mentioned it only to indicate that there are different pract ices
available. In so far as the Muslims are concerned, whatever
be the difference in beliefs and practices among the Hanafis ,
261
who are treated as a majority group of Sunnis in Ind ia, 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) ri tuals
(Certain passages from Al-Bahr-ur-Raiq will buttres s this
aspect). The family also intends to have its own pr actices
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 pra ctices
in the form of rituals with the participation of near rela tives
of a deceased, following what could be permissible under
given circumstances…..
xxx xxx xxx
23. …..the right of the family of a Covid-19 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
Covid-19, a fine balance must be struck by the State and the
local self-government 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 i s
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 confineme nt, right
to legal aid, right to speedy trial etc. The Hon’ble S upreme
Court in many cases has also observed and interpreted th at
right to have a decent burial is also included in Article 21 of
the Constitution of India. The right to human dignity is not
MOHAMMAD LATIEF MAGREY v. THE UNION TERRITORY
OF JAMMU AND KASHMIR & ORS. [J. B. PARDIWALA, J.]
restricted to living human being but is available eve n 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 atan 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 Officer-in-charge 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 legisla ture or
executive which is detrimental to the public interest, judi ciary
must occupy the field to sub- serve public interest.
36. The case on hand also falls under the aforementione d
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 pleas e
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 Petitioner s
in WP-I leaves a bad taste in the mouth. We have found the
petitioners to be rather insensitive to others’ fee lings. The
founding fathers of the Constitution felt that the people of
India would strive to secure to all its citizens FRATERN ITY,
263
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 r eligious
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 l ive with
human dignity. By our tradition and culture, the same human
dignity (if not more), with which a living human be ing is
expected to be treated, should also be extended to a pers on
who is dead. The right to accord a decent burial or cremation
to the dead body of a person, should be taken to be par t 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 accordan ce 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, ha d 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 dign ity and
unless it is required for the purposes of establishing a cr ime
to ascertain the cause of death and be subjected to postmort em
or for any scientific investigation, medical educat ion or to
MOHAMMAD LATIEF MAGREY v. THE UNION TERRITORY
OF JAMMU AND KASHMIR & ORS. [J. B. PARDIWALA, J.]
save the life of another person in accordance with l aw, the
preservation of the dead body and disposal in accor dance
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 judgm ent, 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 mat ter
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 tr ibunal
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 c onverted 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 appe al,
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 discretio nary
jurisdiction to grant or not to grant leave to appe al.
The petitioner is still outside the gate of entry tho ugh
aspiring to enter the appellate arena of the Suprem e
Court. Whether he enters or not would depend on the
fate of his petition for special leave.
265
(b) If the petition seeking grant of leave to appeal is
dismissed, it is an expression of opinion by the Cou rt
that a case for invoking appellate jurisdiction of the
court was not made out.
(c) If leave to appeal is granted, the appellate jurisd iction
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 hav ing
been filed, the judgment, decree or order against which
leave to appeal has been sought for, continues to b e
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 nullit y 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
MOHAMMAD LATIEF MAGREY v. THE UNION TERRITORY
OF JAMMU AND KASHMIR & ORS. [J. B. PARDIWALA, J.]
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 Priv y
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 three-Judge Bench of this Court in the case of Hem Raj,
Son of Devilal Mahajan of Bijainagar, Condemned Pri soner, at
Present Confined in the Central Jail, Ajmer v. State o f Ajmer, AIR
1954 SC 462, held as under:
“2. Unless it is shown that exceptional and special
circumstances exist that substantial and grave injus tice has
been done and the case in question presents feature s of
sufficient gravity to warrant a review of the decision a ppealed
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 t hem
267
raise any questions which fall within the rule enun ciated
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 rig ht
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 relat es
to the power of the court. The question is whether it spells b y
implication, fair a procedure as contemplated by Article 21.
In our view, it does. Article 136 is a special jurisdict ion. It is
residuary power; it is extraordinary in its amplitude, its l imit,
when it chases injustice, is the sky itself. This C ourt
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 pro cedural
limitation in the manner of exercise and the occasi on for
exercise? Is there no duty to act fairly while heari ng a case
under Article 136, either in the matter of grant of lea ve or,
after such grant, in the final disposal of the appeal? We h ave
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 te rms of
Article 136 that it shall be exercised by the highest judg es of
the land with scrupulous adherence to judicial principles w ell
established by precedents in our jurisprudence. Jud icial
discretion is canalised authority, not arbitrary ec centricity.
Cardozo, with elegant accuracy, has observed: [Benj amin
Cardozo : The Nature Of The Judicial Process, Yale University
Press (1921)]
“The Judge, even when he is free, is still not wholly fr ee.
He is not to innovate at pleasure. He is not a knight-errant
roaming at will in pursuit of his own ideal of beauty or of
MOHAMMAD LATIEF MAGREY v. THE UNION TERRITORY
OF JAMMU AND KASHMIR & ORS. [J. B. PARDIWALA, J.]
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
power-cum-procedure — power in that it vests jurisdiction i n
the Supreme Court, and procedure in that it spells a mode of
hearing. It obligates the exercise of judicial discre tion and
the mode of hearing so characteristic of the court proc ess. In
short, there is an in-built prescription of power and procedur e
in terms of Article 136 which meets the demand of Articl e 21.
9. We may eye the issue slightly differently. If Artic le 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 app eal
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 stress ed 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
269
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 s tate. 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 rite s 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 de ad 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 Ridg e National
Laboratory and Adjunct Associate Professor at the Uni versity 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
MOHAMMAD LATIEF MAGREY v. THE UNION TERRITORY
OF JAMMU AND KASHMIR & ORS. [J. B. PARDIWALA, J.]
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 wou ld 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 orde r 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 re spect &
dignity, with the help of the Auqaf Committee at the Wadder Payeen
Graveyard. We are convinced of one thing that the body was burie d
with dignity. There is nothing on record to indicate that the dead bo dy
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 vocif erous
submission on behalf of the appellant that with a view to remedy the
wrong, as alleged, this Court should direct the respondents to exh ume
the body and permit the appellant and his family members to thereafter
perform the rituals. It is for this very wrong as allege d that the High
Court has awarded a monetary compensation of the am ount 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
271
disturbance or removal of an interred body is subject to the control and
direction of the court. The law does not favour disinterment, bas ed on
the public policy that the sanctity of the grave should b e 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 jus tice. Each
case is individually decided, based on its own particula r 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 wa shed and
thereafter wrapped in a fresh white cloth. The praye rs 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 bu t also to his
body after his death. We, as a court of law, respect the em otions and
sentiments expressed by the appellant as the father of the deceased.
However, the court of law should not decide the rights of t he 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 4 6 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 t he 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.
MOHAMMAD LATIEF MAGREY v. THE UNION TERRITORY
OF JAMMU AND KASHMIR & ORS. [J. B. PARDIWALA, J.]
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.
Ankit Gyan Appeal dismissed.
(Assisted by : Aarsh Choudhary, LCRA)