While declining the exhumation of a militant killed in Jammu and Kashmir, the Supreme Court has observed, "Once buried, a body should not be disturbed."

The Court also took note of the fact that India has no legislation for exhumation except under Section 176(3) of CrPC and directed the Union of India that it may consider enacting appropriate legislation on the subject.

The Bench of Justice Surya Kant and Justice J.B. Pardiwala was hearing a plea filed by the father of the deceased, a militant who was killed in an encounter in Jammu and Kashmir. The Appellant – Father of the deceased had prayed before the Court to hand over the body of his son who was buried at the J&K graveyard by the Auqaf Committee in order to bury their son as per their own religious traditions.

The Appellant–Father had earlier preferred a Writ Petition before the Jammu and Kashmir and Ladakh High Court at Srinagar which was allowed by the Single Judge. The judge had directed the Respondents to make arrangements for the disinterment of the body/remains of the deceased from the graveyard in the presence of his Appellant – Father.

Aggrieved, the Union Territory of Jammu and Kashmir and others preferred an LPA before the High Court. The Appeal Court did not approve of the decision of the Single Judge to direct the Respondents to exhume the body of the deceased and permit the family members to shift and bury at their native graveyard in accordance with religious practice.

The father of the deceased then approached the Supreme Court.

Senior Counsel Anand Grover appeared for the Appellant while Counsel Ardhendumauli Kumar Prasad appeared for the Respondents before the Apex Court.

  • The issues that were dealt with by the Court were –

i) 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?

ii) 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?

iii) 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 the 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?

iv) Whether the High Court in appeal committed any substantial error in passing the impugned order?

The Court noted, "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 dead to 'rest in peace' and is generally regarded as a forbidden or sacrilegious act."

The Bench further noted that in the case after the deceased was killed in the encounter, the authorities performed the last rights of the deceased with all dignity with the aid of Auqaf Committee as per the religious beliefs and practices and buried in him in J&K.

  • Religious rights of person subject to public order

Furthermore, the Court held, "…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."

  • Right to decent burial enshrined under Article 21

While placing reliance on a catena of judgments, the Bench noted that the right to have a decent burial is enshrined under Article 21 of the Constitution.

The Court further also noted 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.

  • Condition of the body after burial

The Bench noted that even the High Court allowed exhumation subject to the condition that the body should be found in a deliverable state. Further, the High Court had also held 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.

Furthermore, the Court also added that almost 9 months have passed posy burial which was suggestive that the body may not be in a deliverable state.

Thus, the Court held that the dead should not be disturbed and some sanctity be attached to the grave.

"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 would have deserved had he been alive, subject to his tradition, culture and religion which he professed," the Bench observed.

The Court further also held that these are very sensitive matters involving security of the nation as far as possible the Court should not interfere unless substantial & grave injustice has been done.

The Court held that it was convinced that body of the deceased was buried with dignity.

"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 showing of necessity that disinterment is within the interests of justice. Each case is individually decided, based on its own particular facts and circumstances," the Bench observed.

Additionally, while noting that India has no legislation on exhumation except Section 176(3) CrPC, the Bench held –

"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. The Union of India may consider enacting an appropriate legislation on exhumation so as to tackle the situations like the one on hand."

Thus, the Court held that the impugned judgment of the High Court can be termed as just, proper, and equitable and directed the Respondents to comply with the directions of the High Court and dismissed the appeal.

Cause Title - Mohammad Latief Magrey v. The Union Territory of Jammu & Kashmir & Ors.

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