No Acts & Articles mentioned in this case
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).
1
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,
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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
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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
4
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
5
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.
6
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
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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
8
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
9
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.
10
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
11
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
12
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
13
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
14
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
15
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,
16
(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
17
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
18
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
19
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.
20
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.
14. Therefore, in light of the submissions made herein
above, 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]
21
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
22
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,
23
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 post
mortem 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
24
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:
25
“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.”
26
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
27
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
28
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.
29
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
30
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
31
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
32
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]
33
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 sub
serve public interest.
34
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
35
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.”
36
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
37
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.
(c) If leave to appeal is granted, the appellate
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
38
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
39
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
40
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
41
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
42
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
43
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.
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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
45
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
46
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
47
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.
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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.
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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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