The court also directed Jammu and Kashmir administration to pay Rs 5 lakh as compensation
India has no law on exhumation of bodies, the Supreme Court remarked today, and asked the centre to "consider enacting an appropriate legislation on exhumation so as to tackle the situations like the one on hand". The court's direction came on the plea by a resident of Jammu and Kashmir, who sought exhumation of the body of his son, who had died along with three terrorists during an encounter. The authorities had buried his body instead of handing it over to the family despite their appeals.
Dismissing the plea of the father, Latief Magrey, a bench of Justices Surya Kant and JB Pardiwala said: "After a body has been buried, it is considered to be in the custody of the law; therefore, disinterment is not a matter of right. The disturbance or removal of an interred body is subject to the control and direction of the court. The law does not favour disinterment, based on the public policy that the sanctity of the grave should be maintained. Once buried, a body should not be disturbed".
Amir Magrey was killed in an encounter in Hyderpora along with three other terrorists in November last year. His father, Mohammad Latief Magrey, had appealed for exhumation so the last rites can be performed.
Latief Magrey had initially approached the authorities of Jammu and Kashmir for the body, but his request was declined and the body was buried at the Wadder Payeen graveyard.
Latief Magrey later went to High Court and his petition was allowed by the single judge bench. The government then appealed before a division bench, which ruled that a maximum of 10 persons can perform the rituals at the Graveyard in consultation with administration.
The court also directed the Jammu and Kashmir Government to pay Rs 5 lakh as compensation to the family.
Latief Magrey then went to the Supreme Court seeking exhumation so the family can perform prayers and rituals to their satisfaction.
The Jammu and Kashmir Government opposed the plea, arguing that the "order passed by the High Court is balanced" as it keeps "relevant aspects" including public order in mind.
"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," the Supreme Court said.
"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," the judges said.
At the same time, "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," the judges said. "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," the Bench added, asking the Centre to consider laws on exhumation of bodies.