The Supreme Court dismissed a petition of a Kashmiri resident seeking handover of the body of his son killed in a gunfight.
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.
In connection with the said incident, a First Information Report 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 reply of the ULA (P) Act.
During the course of the investigation, the Investigating Officer recovered four bullet ridden unidentified dead bodies at the site of the encounter.
The dead bodies were shifted to the Police Hospital at Srinagar for the medico legal formalities. After conducting the postmortem etc., the dead bodies were identified as that of a foreign terrorist. All the four dead bodies were shifted to the Handwara Zachaldara for burial.
Senior Advocate Anand Grover, appearing for the appellant, 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.
He contended that the body is now buried past almost more than eight months.
He urged that 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.
Advocate Ardhendumauli Kumar Prasad, appearing for the respondents, submitted 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 the Court in exercise of jurisdiction under Article 136 of the Constitution.
He contended 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.
The division bench of Justice Surya Kant and Justice J. B. Pardiwala noted that 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.
The court stated that 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.
The bench said that the principles of law discernible 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, the Court would not exercise its overriding powers under Article 136 (1) of the Constitution. The wide discretionary power with which the Court is invested under Article 136 is to be exercised sparingly and in exceptional cases only.
The court added that 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.
The court said that it respects 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” the court added.
The bench said that the Union of India may consider enacting an appropriate legislation on exhumation so as to tackle the situations like the one on hand.
The court viewed 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.
The court directed the respondents to comply with the directions issued by the High Court, as contained in para 21 of the impugned judgment and order.
Case title: Mohammad latief magrey v/s the union territory of jammu and kashmir & ors.
Citation: CIVIL APPEAL NO. 6544 OF 2022