State to Compensate Rs. 5 lakhs for deprivation of a Person’s right to have dead body of his son: Jammu & Kashmir High Court

State To Compensate Rs. 5 lakhs for deprivation of A Person's right to have dead body of his son: Jammu & Kashmir High Court

The Jammu & Kashmir High Court ordered the State to compensate Rs. 5 lakhs for deprivation of a person’s right to have the dead body of his son.

Background 

The petitioner is father of one Mohd Amir Magrey who was amongst four persons who were killed in an encounter between the Police and Militants that took place in 2021 at Hyderpora area of District Budgam. As per the version of the respondents, Police Station Saddar received a written report along with seizure memo of arms/ammunitions from 2 RR Army Camp, Zainkote Srinagar through HC Chain Singh to the effect that at 5.15 P.M Army 2 RR received reliable information that some terrorists are hiding in a building within the jurisdiction of Police Station Saddar and have planned to attack security forces. Upon said information, Army cordoned the area and started search operation to nab the terrorists. During search operation, the terrorists hiding in the building opened indiscriminate firing upon the search party, which was retaliated and in the ensuing encounter two terrorists and their two associates were killed. Some arms and ammunition was also recovered from the encounter site. 

Arguments 

The petitioner submitted that it was only on 16.11.2021 he was informed by Police Station Gool that his son Amir Latief Magrey had been killed in an encounter in Kashmir and that he should go to Kashmir to identify the body. On 16.11.2021 the petitioner along with his family members reached Police Station Saddar where he was told that Amir was a militant and was killed along with two other associates at Hyderpora and that the dead body of Amir has been buried. 

The petitioner claimed that he was totally unconvinced with the respondents‟ claim that Amir was a militant and was killed in an encounter and, therefore, approached the authorities for intervention.

The respondents contended that the demand of return of the dead body in the instant case is not a demand for a dead body of an ordinary citizen killed in an action of security forces but it is a dead body of a terrorist, who has been killed during encounter. If, for any reason, the return of dead body of terrorist like the son of the petitioner, is considered, not only it will send wrong message in the society but it would also lead to greater law and order and security concerns.

Decision 

The single judge bench of Justice Sanjeev Kumar observed that right to life as guaranteed by Article 21 of the Constitution of India includes right to live with human dignity and decency and would extend to treat his dead body with respect.

The court further observed that the right to decent burial to the dead body as per the religious obligations and religious belief that the deceased professed during his lifetime, is concomitant with the right to live with dignity.  

The court said that 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 lifetime, is part and parcel of right to life guaranteed under Article 21 of the Constitution of India.

The court added that the respondents 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 court held that 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 the Court. The decision of the respondents not to allow the petitioner to take away the dead body of his son to his native village for last rites was per-se arbitrary and falls foul of Article 14 of the Constitution of India.

The court allowed the petition of the father of the deceased Amir Latief Magrey and directed 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 court said that 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 court ordered that the State shall pay to the petitioner a compensation of Rs. 5 lakhs for deprivation of his right to have the dead body of his son and give him decent burial as per family traditions, religious obligations and faith which the deceased professed when he was alive.

Case title: Mohammad Latief Magrey v/s Union of India and ors

Citation: WP(C ) No. 11/2022

Click here to  read the Order/Judgment 

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