MOHAMMAD LATIEF MAGREY versus THE UNION TERRITORY OF JAMMU AND KASHMIR & ORS. on 12 September 2022

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[2022] 11 S.C.R.

AMOHAMMAD LATIEF MAGREY

v.

THE UNION TERRITORY OF JAMMU AND KASHMIR & ORS.(Civil Appeal No. 6544 of 2022)

BSEPTEMBER 12, 2022

[SURYA KANT AND J. B. PARDIWALA, JJ.]

Constitution of India – Arts. 14, 21, 25, 26 and 136 – Codeof Criminal Procedure, 1973 – s.176(3) – Exhumation of the deadbody – There was an encounter between militants and Police – FourCmilitants were shot including the son of appellant – FIR wasregistered – During the investigation four bullet ridden unidentifieddead bodies were recovered from the site of the encounter – Bodiesof two out of four persons were later exhumed and handed over totheir relatives for performing their last rites – The bodies of theDother two persons (Son of appellant and one other) were buriedthrough Auqaf Committee and were not disinterred and handed overto their families – The appellant approached the High Court – Singlejudge of the High Court directed the respondents to make necessaryarrangement for the disinterment of the body/remains of thedeceased – The respondent filed LPA and challenged the orderEpassed by the Single judge – The High Court permitted the appellantand his family member to perform religious rituals/prayers of thedeceased but declined to grant permission to disinter the body ofthe deceased for the purpose of religious rites – The appellantapproached the Supreme Court and submitted that that appellantFhas a fundamental right U/Art. 21 to perform last rites of his deadson in accordance with the rituals – Held: The body was buriedwith dignity – After a body has been buried, it is considered to be inthe custody of the law, therefore, disinterment is not a matter ofright – The law does not favour disinterment as sanctity of graveshould be maintained – Court will permit disinterment only if it isGwithin the interests of justice – The right to have a dignified life U/Art. 21 is not only available to living person but also to dead –Almost 9 months have passed post burial which suggest that bodymay not be in a deliverable state.

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Constitution of India – Article 136 – Scope and power ofSupreme Court – Only when exceptional and special circumstancesexist; that substantial and grave injustice has been done and thecase and question presents features of sufficient gravity than onlyCourt would exercise powers under Article 136 – To be exercisedsparingly and in exceptional cases only.

Dismissing the appeal, the Court

HELD:1. Even the Single judge by order dated 27.05.2022,had mentioned that the dead body of the deceased must be inadvanced stage of putrefaction. Almost 9 months have passedpost burial which is suggestive that the body may not be in adeliverable state. It will be too much at this stage to disinter thebody. The dead should not be disturbed and some sanctity shouldbe attached to the grave. [Para 53][270-A-B]

2. It goes without saying that the right to live a dignifiedlife as enshrined under Article 21 of the Constitution is not onlyavailable to a living person but also to the “dead”. Even a deadperson has the right of treatment to his body with respect anddignity which he would have deserved had he been alive, subjectto his tradition, culture and religion which he professed. Theserights are not only for the deceased but, his family members alsohave a right to perform the last rites in accordance with thereligious traditions. [Para 54][270-B-C]

3. After a body has been buried, it is considered to be inthe custody of the law; therefore, disinterment is not a matter ofright. The disturbance or removal of an interred body is subjectto the control and direction of the court. The law does not favourdisinterment, based on the public policy that the sanctity of thegrave should be maintained. Once buried, a body should not bedisturbed. A court will not ordinarily order or permit a body to bedisinterred unless there is a strong showing of necessity thatdisinterment is within the interests of justice. Each case isindividually decided, based on its own particular facts andcircumstances. [Para 56][270-H; 271-A-B]

4. The respondents have stated on oath that the body ofthe deceased was buried with all honour. The body was first washed AB

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Aand thereafter wrapped in a fresh white cloth. The prayers werealso performed at the time of the burial. There is nothing toindicate that the deceased was not given a decent burial asenshrined under Article 21 of the Constitution. The right to dignityand fair treatment under Article 21 of the Constitution is not onlyavailable to a living man but also to his body after his death. [ParaB57][271-C-D]

Pettigrew v. Pettigrew 56 A. 878 (Pa. 1904); UnionTerritory of J & K and Others v. Mohammad LatiefMagrey and Another 2022 SCC OnLine J&K 516;Mohammad Latief Magrey v. Union of India and Others,2022 SCC OnLine J&K 433; Pt. Parmanand Katara,Advocate v. Union of India (1995) 3 SCC 248 S. SethuRaja v. The Chief Secretary, The Chief Secretary,Government of Tamil Nadu and Ors., WP(MD) No.3888of 2007 decided on 28.08.2007, Ramlila MaidanIncident In Re, (2012) 5 SCC 1 : [2012] 4 SCR 971;Jakir Sk. v. The State of West Bengal & Ors., (2017)SCC OnLine Cal 3354; Vineet Ruia v. PrincipalSecretary, Ministry of Health and Family Welfare,Government of West Bengal, AIR 2020 Cal 308; RamSharan Autyanuprasi v. Union of India AIR 1989 SC549 : [1988] 3 Suppl. SCR 870; Ashray AdhikarAbhiyan v. Union of India (2002) 2 SCC 27 : 2002 (1)JT 41; Pradeep Gandhy v. State of Maharashtra, 2020SCC OnLine Bom 662.; Mohd. Hamid and Another v.Badi Masjid Trust and Others (2011) 13 SCC 61 :[2011] 9 SCR 348; Gulam Abbas and Others v. State ofU.P. and Others (1984) 1 SCC 81 : [1984] 1 SCR 64;Adi Saiva Sivachariyargal Nala Sangam and Others v.Government of Tamil Nadu and Another (2016) 2 SCC725 : [2015] 11 SCR 1110; Anandhi Simon v. State ofTamil Nadu, Represented by Chief Secretary toGovernment and Others (2021) 3 Mad LJ 479; VikashChandra @ Guddu Baba v. The Union of India & Ors.2008 SCC OnLine Pat 905 : (2008) 2 PLJR 127; RamjiSingh @ Mujeeb Bhai v. State of U.P. & Ors. (2009) 5All LJ 376; Kunhayammed v. State of Kerala (2000)6 SCC 359 : [2000] 1 Suppl. SCR 538; Khoday C

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Distilleries Ltd. v. Sri Mahadeshwara SahakaraSakkare Karkhane Ltd. (2019) 4 SCC 376 : [2019] 3SCR 411; Pritam Singh v. State AIR 1950 SC 169 :[1950] SCR 453, Hem Raj, Son of Devilal Mahajanof Bijainagar, Condemned Prisoner, at PresentConfined in the Central Jail; Ajmer v. State of AjmerAIR 1954 SC 462 : [1954] SCR 1133; P.S.R.Sadhanantham v. Arunachalam and Another (1980) 3SCC 141 : [1980] 2 SCR 873 – referred to.

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6544of 2022.

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From the Judgment and Orders dated 01.07.2022 of the HighCourt of Jammu & Kashmir and Ladakh at Srinagar in LPA No. 99 of2022.

Anand Grover, Sr. Adv., Ms. Deepika Singh Rajwant, Paras NathSingh, Rohin Bhatt, Ms. Nupur Kumar, Advs. for the Appellant.

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Ardhendumauli Kumar Prasad, Ms. Shreya Srivastava, AshishMadaan, Ms. Ananya Sahu, Aman Singh Bhadoria, Ms. TarunaArdhendumauli Prasad, Ms. Neela Kedar Gokhale, Shailesh Madiyal,Ms. Praveena Gautam, Anuj Srinivas Udupa, Nakul Chengappa K. K.,Chitransh Sharma, G. S. Makker, Advs. for the Respondents.

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AThe Judgment of the Court was delivered by

J. B. PARDIWALA, J.

1. Leave granted.

2. “The dead are to rest where they have been lain unlessBreason of substance is brought forward for disturbing their repose.”

- Justice Cardozo Yome v. Gorman, 152 N.E. 126, 129 (N.Y.1926).

3. The leading case on disinterment in the United States isPettigrew v. Pettigrew, 56 A. 878 (Pa. 1904) which was decided by theCSupreme Court of Pennsylvania in 1904:

“The presumption is against a change. The imprecation onthe 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 againstDprofanation, but even disturbance. When a case comes intocourt, the chancellor will regard this sentiment, and considerall the circumstances in that connection.”

4. This appeal is at the instance of the original writ applicant (fatherof the deceased, whose son, namely, Mohd. Amir Magrey was killed inEan encounter between the police and militants) and is directed againstthe judgment and order passed by the High Court of Jammu & Kashmirand Ladakh at Srinagar in Union Territory of J & K and Others v.Mohammad Latief Magrey and Another, 2022 SCC OnLine J&K516 (the Letters Patent Appeal No. 99 of 2022 dated 01.07.2022)by which the Appeal Court modified the judgment and order passed byFthe learned Single Judge of the High Court in Mohammad LatiefMagrey v. Union of India and Others, 2022 SCC OnLine J&K 433(the Writ Petition (C) No. 11 of 2022 decided on 27.05.2022) & therebypermitted the appellant herein and his family members (maximum up to10 persons) to perform the Fatiha Khawani (religious rituals/prayers afterGburial) of the deceased at the graveyard while declining to grant permissionto disinter the body of the deceased for the purpose of religious rituals.

FactualMatrix

5. It appears from the materials on record that on 15.11.2021,there was an encounter between the militants and police at the HyderporaHarea of Budgam in Kashmir. Four militants were shot dead including the son of the appellant herein. In connection with the said incident, a FirstInformation Report No. 193/2021 was registered at the Saddar PoliceStation for the offences punishable under Sections 307/120-B IPC, 7/27of the Arms Act and 16, 18, 20 resply of the ULA (P) Act. During thecourse of the investigation, the Investigating Officer recovered four bulletridden unidentified dead bodies at the site of the encounter. The deadbodies were shifted to the Police Hospital at Srinagar for the medico-legalformalities. After conducting the post-mortem etc., the dead bodies wereidentified as that of a foreign terrorist viz. Bilal Bhai @ Hyder @ SaqlainR/O Pakistan, Aamir Latief Magrey S/O Mohammad Latief Magrey R/O Seeripora Tehsil Gool Ramban, Altaf Ahmad Bhat S/O Abdul RehmanBhat R/O Old Barzulla Srinagar and Dr. Mudasir Gull S/O GhulamMohammad Rather R/O Parraypora Srinagar. All the four dead bodieswere shifted to the Handwara Zachaldara for burial.

6. The material on record further reveals that the bodies of thetwo out of the four persons killed in the encounter were later exhumedand handed over to their relatives for performing their last rites at theplace of their choice. The bodies of the other two persons killed in theencounter i.e. Bilal Bhai @ Hyder and the son of the appellant hereinburied through the Auqaf Committee, Wadder Payeen were not disinterredand handed over to their respective family members.

7. It appears that so far as the deceased, namely, Bilal Bhai, aresident of Pakistan is concerned, nobody claimed his body nor wasthere 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 deadbody of his son Amir is concerned, he had approached various authoritieswith a request to hand over the body but none listened to him and ultimatelythe body of his son (deceased) was buried at the Wadder PayeenGraveyard. It is his case that he was informed by the Police Station atGool on 16.11.2021 that his son Amir had been killed in an encounter inKashmir and that he should proceed to Kashmir to identify the body. On16.11.2021, the appellant along with his family members reached thePolice Station at Saddar, where he was told that his son Amir Magreywas a militant and was killed along with three other associates at theHyderpora and the dead body of Amir had been buried.

8. In such circumstances referred to above, the appellant hereinpreferred the Writ Petition (C) No. 11 of 2022 in the High Court andprayed for the following relief:

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A“In view of the submissions made herein above and those tobe urged at the time of hearing, this Hon’ble Court is humblyrequested to direct the respondents to handover the body ofLate Mohammad Amir Magray, who was killed in a jointencounter by them on 15.11.2021 at Hyderpora area ofBudgam in Kashmir to the petitioner who happens to be hisBbiological father on the facts and grounds mentioned above.”

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9. A learned Single Judge of the High Court adjudicated the writapplication and allowed the same directing the respondents herein tomake necessary arrangements for the disinterment of the body/remainsof the deceased Amir Magrey from the Wadder Payeen Graveyard inCthe presence of the appellant herein.

10. The learned Single Judge while allowing the writ applicationfiled by the appellant herein, held as under:

“15. The right of the next of kin of the deceased to have theirDdear one cremated or buried as per the religious obligationsand religious belief that the dead person professed during hislife time, is part and parcel of right to life guaranteed underArticle 21 of the Constitution of India. The parents and closerelations of the deceased are well within their right to demandthe dead body of their dear one to be cremated or buried asEper their traditions, religious obligations and religious belief.This right would also include the choice of the relatives tohave the dead body cremated or buried at his native place. Itis not uncommon that the graves of the dead are maintainedby their relatives and are visited by their relations and closeFfriends to pay respect and homage on certain occasions.

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16. Without dilating much on the issue, it can be said to bewell settled that right to life and liberty guaranteed to a citizenby Article 21 of the Constitution of India includes right ofthe citizen to live with human dignity and this right to live withGhuman dignity even extends after death though in a limitedextent. Viewed thus, the right of the petitioner to claim thedead body of his son for performing last rites in his own wayand in accordance with local traditions, religious obligationsand religious faith, which the deceased professed during hislife time, cannot be disputed. But the question that needs toHbe addressed in the context of present controversy is whether the State can deny this right in the name of preventing lawand order situation going out of hand.

17. It is vehemently contended by the respondents that thedecision not to hand over the body of the deceased to thepetitioner for performing his last rites, was taken in the largerpublic interest and to prevent the situation of law and ordergoing out of hand. It is submitted that respondents havewitnessed such situations in the past and, therefore, havedecided not to handover the dead bodies of the terrorists killedin encounters to their next of kin for cremation or burial toprevent the law and order situation getting worsened. Therespondents, however, have not come clear as to why thedead bodies of two of the four killed in the encounter, namely,Altaf Ahmad Bhat and Dr. Mudasir Gul were exhumed andhanded over to their relatives for their last rites in thegraveyards of their choice and why the similar right claimedby the petitioner was denied. The respondents have tried todraw distinction by submitting that as per the investigationconducted by the SIT, the deceased son of the petitioner wasa confirmed terrorist whereas the other two killed, namely,Altaf Ahmad Bhat and Dr. Mudasir Gul were only associatesof the terrorists. I do not find any logic or sense in distinctionso made by the respondents. It transpires that due to publicpressure and demand by the relatives of the two deceasednamely, Altaf Ahmad Bhat and Dr. Mudasir Gul, therespondents relented and permitted their dead bodies to beexhumed and handed over to their relatives. Since thepetitioner was a resident of Gool, a remote village in JammuProvince and did not much say in the Valley and, therefore,his request was arbitrarily turned down. The action of therespondents is not traceable to any procedure established bylaw which is just, fair and equitable. At least none was broughtto the notice of this Court. The decision of the respondentsnot to allow the petitioner to take away dead body of his sonto his native village for last rites was per-se arbitrary andfalls foul of Article 14 of the Constitution of India.

18. Much has been said by the respondents with regard to thestatus of the body lying buried since 15.11.2021. While it AB

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Acannot be disputed that the body of Amir Latief Magrey buriedon 15.11.2021 in Wadder Payeen Graveyard may haveputrefied by now but that alone cannot be a reason not tohandover the remains of the dead body to the petitioner whois clamoring at the top of his voice to get even the remains ofthe dead body of his son so that he could bury him in hisBnative graveyard in the presence of relatives and afterfollowing all religious obligations. The apprehension of lawand order getting vitiated at this point of time also appears tobe illusory. When the respondents could maintain the law andorder situation when the dead bodies of two, namely, AltafCAhmad Bhat and Dr. Mudasir Gul were exhumed and handedover to their relatives for last rites on 18.11.2021, it is notdifficult for the respondents to make necessary arrangementsfor exhumation of the dead body of Amir Latief Magrey, theson of the petitioner and transport the same in proper escortto Village Thatharka Seripora Tehsil Gool District Ramban.DThe respondents can make appropriate arrangements to ensurethat law and order situation does not get vitiated in any manner.The petitioner, as is fervently contended by his counsel, iseven ready to undertake that he will abide by all the termsand conditions that may be imposed by the respondents withEregard to exhumation, transportation and according of burialto the dead body.”

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11. The learned Single Judge issued the final directions in para19, which reads thus:

“19. For the foregoing reasons, I am inclined to allow thispetition of the father of the deceased Amir Latief Magrey anddirect the respondents to make arrangements for exhumationof the body/remains of the deceased Amir Latief Magrey fromthe Wadder Payeen graveyard in presence of the petitioner.The respondents shall also make appropriate arrangementfor transportation of the dead body to the village of thepetitioner for according burial in his native graveyard inaccordance with the traditions, religious obligations andreligious faith which the deceased professed during his lifetime provided it is in deliverable state. The respondents arefree to impose any reasonable terms and conditions in respect F

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of exhumation, transportation and burial of the dead body ofAmir Latief Magrey, the son of the petitioner. Since the deadbody of the deceased must be in advance stage of putrefaction,as such, it would be desirable that the respondents act withpromptitude and do not waste any further time. However, ifthe body is highly putrefied and is not in deliverable state oris likely to pose risk to public health and hygiene, thepetitioner and his close relatives shall be allowed to performlast rites as per their tradition and religious belief in theWadder Payeen graveyard itself. In that situation, the Stateshall pay to the petitioner a compensation of Rs. 5 lakhs fordeprivation of his right to have the dead body of his sonand give him decent burial as per family traditions, religiousobligations and faith which the deceased professed when hewas alive.”

12. Thus, the learned Single Judge addressed himself essentiallyon the following issues:

a. The State could not have denied the right of the appellant toclaim the dead body of his son for performing the last rites inaccordance with his religious faith on the ground of likelihoodof disturbance of public order. According to the learned SingleJudge, such right as asserted by the father is enshrined underArticle 21 of the Constitution.

b. Why the dead bodies out of the four killed in the encounterwere permitted to be exhumed and handed over to theirrelatives for their last rites?

c. The action on the part of the respondents in not allowing theappellant to take away the dead body of his son to his nativevillage was violative of Article 14 & 21 resply of theConstitution.

13. The Union Territory of Jammu & Kashmir and others beingdissatisfied and aggrieved with the aforesaid order passed by the learnedSingle Judge of the High Court challenged the same by filing the LettersPatent Appeal No. 99 of 2022. The Appeal Court disposed of the appealholding as under:

“15. Learned Advocate General while making his submissionin line with the contentions raised and grounds urged would A

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contend that the impugned judgment is not legally sound andthat writ petitioner was not entitled to any of the reliefs prayedin the petition including the reliefs sought now. According tothe learned Advocate General, the writ court misdirected itselfwhile considering the controversy and did not consider thematter in its right and correct perspective, warranting as such,setting aside of the impugned judgment and dismissal of thepetition. The learned Advocate General, however, would fairlycontend that having regard to facts and circumstances of thecase, respondent no. 1 and his family members can be allowedto perform Fatiha Khawani (prayers after burial) at the graveof the deceased subject to security measures as may be requiredto be put in place by appellants, as according to him, the lastrites of deceased had been performed as per Islamic Religiouspractices by giving a washing/cleaning of dead body,shrouding/systematic wrapping of the body with two whitepieces of cloth, covering the whole body followed by Janazaprayers 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 groundsurged by learned Advocate General inasmuch as the aforesaidoffer made by learned Advocate General, and would insistfor exhumation of the body of the deceased for performanceof last rites by the writ petitioner/respondent no. 1 herein.

17. In view of giving up of the relief of exhumation of thebody of the deceased for performance of last rituals by writpetitioner/respondent no. 1 before the Apex Court inasmuchas in view of uncontroverted/unopposed stand taken byappellants before the Writ Court, that last rites of deceasedstand already performed while burying deceased at WadderPayeen Graveyard, the contention of the counsel forrespondent no. 1 in fact pales into insignificance and is notacceptable.

18. The prayer of counsel for respondent no. 1 made duringthe course of arguments that respondent no. 1 and his familymembers be permitted to see the face of deceased by openingthe grave of the deceased, cannot be accepted and permitted, firstly, in view of pleading of writ petitioner that the deadbody would start decomposing immediately after burial, andsecondly in view of the statement made by the writ petitionerbefore the Apex Court while giving up the prayer ofexhumation of the dead body of the deceased.

19. The aforesaid offer made by learned Advocate Generalseemingly is fair and reasonable in the facts and circumstancesof the present case.

20. Insofar as alternative relief, pressed by respondent no. 1before the Apex Court qua payment of compensation asgranted by the Writ Court is concerned, it needs to beappreciated that appellants admittedly did not provideopportunity to respondent no. 1 and his family to associate inthe burial and performance of last religious rites of thedeceased. Appellants prima facie have acted unfairlyinasmuch as unreasonably in this regard notwithstanding theallegation of appellants that person of deceased was aterrorist even if it may be assumed, as such, that the deceasedrelinquished his right to be buried after performance of lastrites performed by his family members in accordance with thefaith professed by him, yet the said right of burial andperformance of last religious rituals of deceased available torespondent no. 1 and his family members could not have beendenied. Admittedly, respondent no. 1 and his family manifestlyhas been subjected to emotional and sentimental melancholy.Respondent no. 1 and his family have been deprived byappellants of the right to perform last rites and rituals ofdeceased by the appellants admittedly without there being anypolicy/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 thebackground of the family of respondent no. 1 and his family’srole in fighting terrorism. The Writ Court having regard to theaforesaid position has rightly awarded the compensation tothe respondent no. 1 for such deprivation and the award ofsaid compensation seemingly is appropriate.”

14. The Appeal Court issued the following directions in para 21, asunder:

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A“21. For all what has been observed, considered and analysedabove, and having regard to the peculiar facts and circumstancesof the present case, the instant appeal is disposed of as follows:

(i) Appellants to allow respondent no. 1 and his familymembers (maximum 10 persons) to perform FatihaBKhawani (religious rituals/prayers after burial) ofdeceased at Wadder Payeen Graveyard, on the dateand time to be decided in consultation withrespondent no. 1, subject to taking into accountsecurity measures which may be required to be putin place inasmuch as the COVID-19 guidelines.

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(ii) Appellants to pay compensation of Rs. 5.00 Lakhs,awarded by the Writ Court, to respondent no. 1 ismaintained. It is made clear that the payment of saidcompensation by appellants to respondent no. 1 shallnot form a precedence for future in view of the factDthat the said compensation stands awarded to thewrit petitioner/respondent no. 1 in view of the peculiarfacts and circumstances of the instant case.”

15. Thus, from the aforesaid, it is evident that the Appeal Courtdid not approve the decision of the learned Single Judge to direct theErespondents herein to exhume the body of the deceased and therebypermit the family members to shift and bury at their native graveyard inaccordance with the religious practice.

16. The appellant (father of the deceased) being dissatisfied withthe order passed by the High Court is here before us with the presentFappeal invoking Article 136 of the Constitution.

SubmissionsonbehalfoftheAppellant

17. Mr. Anand Grover, the learned senior counsel appearing onbehalf of the appellant, at the outset, submitted that he would like toconfine his prayer to the extent of directing the respondents to disinterGthe body so as to enable the appellant as a father and other family membersto perform the prayers/rituals to their satisfaction. Mr. Grover submittedthat the body is now buried past almost more than eight months. In suchcircumstances, the family members of the deceased would not like todisturb the remains of the dead body and once the prayers are offered, H

the body may be once again buried. However, Mr. Grover clarified thatthe appellant would like to wash the body with water and wrap it up witha new white cloth.

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18. Mr. Grover further submitted that the Appeal Court ought notto have disturbed the order passed by the learned Single Judge directingthe respondents to exhume the body. He would submit that the appellantas a father still believes that his son was not a terrorist or a militant andwas killed in a fake encounter. Mr. Grover would submit that assumingfor a moment without admitting that the deceased was a militant, thepolice should have handed over the dead body to the family membersand could not have buried the body discreetly at the Wadder PayeenGraveyard.

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19. The entire line of argument of Mr. Grover is that the appellanthas a fundamental right under Article 21 of the Constitution to performthe last rites of his dead son in accordance with the rituals prevailing inIslam. The appellant as a father could not have been deprived of suchfundamental right. He would submit that as the appellant was notpermitted or rather given an opportunity to perform the last rites of hisdead son, there is no other option but to pray for exhumation of the deadbody.

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20. In support of his aforesaid submissions, Mr. Grover seeks torely upon the following decisions:

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(1) Pt. Parmanand Katara, Advocate v. Union of India,(1995) 3 SCC 248,

(2) S. Sethu Raja v. The Chief Secretary, The ChiefSecretary, Government of Tamil Nadu and Ors.,FWP(MD) No.3888 of 2007 decided on 28.08.2007,

(3) Ramlila Maidan Incident, In Re, (2012) 5 SCC 1,

(4) Jakir Sk. v. The State of West Bengal & Ors., 2017 SCCOnLine Cal 3354, G

(5) Vineet Ruia v. Principal Secretary, Ministry of Healthand Family Welfare, Government of West Bengal, AIR2020 Cal 308,

(6) Ram Sharan Autyanuprasi v. Union of India, AIR 1989SC 549, H

A(7)Ashray Adhikar Abhiyan v. Union of India, (2002) 2 SCC27,

(8) Pradeep Gandhy v. State of Maharashtra, 2020 SCCOnLine Bom 662.

21. In such circumstances referred to above, Mr. Grover praysBthat there being merit in his appeal, the same may be allowed andappropriate relief may be granted.

SubmissionsonbehalfoftheRespondents

22. On the other hand, this appeal has been, vehemently, opposedCby Mr. Ardhendumauli Kumar Prasad, the learned counsel appearing forthe respondents submitting that no error, not to speak of any error of lawcould be said to have been committed by the High Court in passing theimpugned order. The learned counsel would submit that the impugnedorder passed by the High Court is a balanced order keeping all the relevantaspects of the matter in mind, more particularly, the issues relating toDpublic order etc. and no interference is warranted at the end of thisCourt in exercise of jurisdiction under Article 136 of the Constitution.

23. The learned counsel would submit that the appellant as a fatherof the deceased cannot assert that he has a fundamental right underArticle 21 of the Constitution to seek exhumation of the body for theEpurpose of performing the necessary rituals.

24. The learned counsel invited the attention of this Court to theaverments made in the affidavit in reply filed for the purpose of opposingthe present appeal. We quote the relevant averments, as under:

“4. It is respectfully submitted that in the previous round ofFbefore this Hon’ble Court in SLP(C) No. 10760 of 2022, thePetitioner submitted that he does not press for the reliefregarding exhumation and handing over of the body remainsof his deceased son. Relevant extract of the order dated27.06.2022 passed by this Hon’ble Court in SLP(C) No.G10760/2022 are reproduced herein below:

“Learned counsel for the petitioner at the outset states thathe does not press for the first relief granted by the learnedSingle Judge of the High Court regarding exhumation andhanding over of the body remains of his deceased son.”

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5. Pursuant to the above, the Hon’ble High Court afterconsidering the said submission of the petitioner herein passedthe present Impugned Order. Relevant extract of the ImpugnedOrder dated 01.07.2022 passed by the Hon’ble High Court isreproduced herein below:

“7. Indisputably, Respondent No. 1 herein has given upfirst relief, granted by the Writ Court, before the Apex Courtas regards exhumation and handing over of thebody-remain of his deceased son. As such, the appearingcounsel for parties were heard on the rest of the reliefsidentified in the order of the Apex Court.”

6. Further, the Hon’ble High Court whilst passing the presentimpugned order was pleased to allow the petitioners hereinand his family members (maximum 10 persons) to performFatiha Khawani (religious rituals/prayers after burial) of thedeceased at Wadder Payeen Graveyard, on the date and timeto be decided in consultations with respondent no. 1, subjectto taking into account security measures which may berequired to be put in place in as much as the COVID-19guidelines.

7. It is submitted that the respondent is agreeable to theabovementioned relief granted by the Hon’ble High Courtwith regards to performing Fatiha Khawani (religious rituals/prayers after burial) subject to reasonable conditions beingimposed by the concerned District Magistrate in the interestof public health, security and maintenance of law and order.

8. It is humbly submitted that further relief sought by thePetitioner before this Hon’ble Court regarding exhumation ofthe body of the deceased and offering prayer thereat is opposedby the answering respondent authorities on the ground of statesecurity, law and order, public health & hygiene apart fromthe fact that the same will open a floodgate of similar requestsand will raise serious security concerns and threat to publicorder and health. In this regard detailed averments havealready been submitted by the answering respondent beforesingle bench and Divisional Bench of JK High Court.

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9. It is respectfully submitted that the deceased was a hardcore terrorist associated with a terrorist group and was killedin an encounter with the security forces on 15.11.2021 alongwith Pakistan based terrorist with whom he was hatchingdifferent terror conspiracies.

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B10. Thatpursuanttothe fierce gun battle/encounterthatledtokillingofthedeceased terrorist, authoritieshave performedthe last rites of the deceased as per hisreligiousbeliefsandpracticesandburiedthedeadbodyasper thereligiouscustoms.It isrespectfully submittedthattheHon’bleHighCourthasnowhereobservedthattherehasbeenanyviolationCofpracticeofreligiouscustomsduringthelastritesofthedeceased.

11. Itisrespectfullysubmittedthatithasbeenmorethan 8months from the date of burial of the dead bodyand as ofnow the same would have decomposed hence,no purposewould suffice by exhuming the same as thesamemayleadtoadversepublichealthissues.Thisfactualpositionisalsoelaboratelyadmittedbythepetitionerinitspleadingsaswellbeforethe Hon’bleHighCourtofJ&K,Srinagar.

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12. That,itisfurtherrespectfullysubmittedthatpursuant toEthe encounter of terrorist namely BurhanWani, a disturbingtrend of glorification of the deceasedterroristswaswitnessedinthevalleywhereinanti-national emotions were stoked inthe youth and they areinstigatedagainsttheIndianRepublictojoinvariousterrorgroups.ItisrespectfullysubmittedthatFinexhuming the remains of the deceased, such emotionsmaybe flared and such activities shall be revived whichmay leadto a further threat to national security andglorificationofterrorism.

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13. It is respectfully submitted that the valley is affectedbyGterroractivitiesandthereareregulargun-battle/encountersbetweenthesecurityforcesandterrorists. Any direction ofexhumation of the body willlead to similar requests from thefamily of other killedterrorists, which may adversely affectsecurity of nationand public order in the entire Union Territoryof JK, asmentionedaboveandavermentsalreadysubmittedHbeforetheHonourableHighCourt.

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14. Therefore, in light of the submissions made herein- above,it is respectfully submitted that the prayer of exhumation ofthe mortals of the deceased may not be granted and thedirection of allowing the petitioners herein and family(maximum 10 persons) to perform Fatiha Khawani (religiousrituals/prayers after burial) of the deceased at Graveyard,on the date and time to be decided in consultations withrespondent no. 1, subject to taking into account securitymeasures which may be required to be put in place in as muchas the COVID-19 guidelines may be allowed and the presentSpecial Leave Petition may be dismissed.” [Emphasis supplied]

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25. In such circumstances referred to above, the learned counselappearing for the respondents prayed that there being no merit in thisappeal, the same may be dismissed.

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26. Having heard the learned counsel appearing for the partiesand having gone through the materials on record, the following questionsof law fall for the consideration of this Court:

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a.Whether the appellant (father of the deceased) can prayfor exhumation of the dead body of his son from the graveyardasserting that it is his fundamental right as enshrined underArticle 21 of the Constitution to perform the last rites of hisslained son?

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b.Will it be in the fitness of the things, more particularly, havingregard to the fact that the body is now buried past morethan eight months to order, exhumation so as to enable theappellant and his family members to perform the rituals asfollowed in Islam?

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c.Assuming for a moment that it is the fundamental right ofthe father under Article 21 of the Constitution to performthe last rites and rituals of his son with dignity before beingGburied in a graveyard, should this Court in exercise of itsjurisdiction under Article 136 (1) of the Constitution disturbthe impugned order passed by the High Court at the risk &peril of public order, health etc. and grant the relief ofexhumation after almost nine months?

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Ad.Whether the High Court in appeal committed any substantialerror in passing the impugned order?

ExhumationofBody

27. Exhumation involves opening up a grave (or occasionally avault) and removing the human remains already buried there. Also knownBas ‘disinterment’, exhumation is controversial – even if the intent is usuallyto rebury the displaced remains elsewhere. Most societies and culturesthat embrace burial as a means of bodily disposal exhibit an entrenchedreluctance to disturb the dead’s earthly repose mainly for two reasons.The first is public health concerns around the potential transmission ofCdisease 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 sacrilegiousact.

28. Ordinarily, the request for exhumation would fall into two broadDcategories: “public interest and personal reasons.”

29. The lawful authority for exhumation is contained in Section176(3), CrPC, 1973. This activity is permitted for the purpose of crimedetection and other such pressing situations. Whenever there is a suspicionof foul play like homicide, criminal abortion, disputed cause of death,Epoisoning etc. exhumation may be carried out for the purpose of post-mortem examination.

30. In the instant case, after the deceased was killed in theHyderpora encounter, the authorities performed the last rites of thedeceased with all dignity with the aid of the Auqaf Committee as per theFreligious 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 ofdeceased was shifted and buried by the Auqaf Committee in accordancewith all the religious obligations at the Wadder Payeen Graveyard, inpresence of the Executive Magistrate, Zachaldara. The last rites of thedeceased had been performed as per the Islamic Religious practices byGgiving a wash/cleaning of dead body, shrouding/systematic wrapping ofthe body with two white pieces of cloth, covering the whole body followedby the Janaza prayers and consequent burial of the deceased in thegrave, reciting the verses from the Holy Book Quaran. However, theappellant asserts that it was his privilege to perform the last rites of hisHson as a father.

ScopeofArticles25&26resplyoftheConstitution

32. In Mohd. Hamid and Another v. Badi Masjid Trust andOthers, (2011) 13 SCC 61, this Court held that:

“10. …..Page 406 of Hanafi Law Relating to Wakf or Trustswas also placed before the High Court and has also beenplaced before us by the counsel appearing for the respondents.Page 406 of the said law reveals a fatwa contained inFatawa-e-Alamgiri at p. 556, in which it is stated under theheading “A burial ground” in the following manner:

“Whenabodyhasbeenburiedintheground, whetherforalongorshorttime,itcannotbe exhumed without someexcuse. But it may lawfully beexhumedwhenitappearsthatthelandwas usurped, or another is entitled to it undera right ofpre-emption.”

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12. In this connection, we may also refer to the decision ofthis Court in Gulam Abbas v. State of U.P. [(1984) 1 SCC 81: 1984 SCC (Cri) 35] In the said decision, this Court hasconsidered the scope and ambit of Articles 25 and 26 of theConstitution of India and also the jurisdiction of this Courtunder Article 32 of the Constitution of India. In the saiddecision, the question which arose for consideration was thatwhether two graves could be shifted to some other place forthe purpose of finding out some permanent solution to theperennial problem of clashes between the two religiouscommunities. While dealing with the aforesaid issue, this Courtconsidered various fatwas issued by religious heads, namely,Head Muftis and Shahi Imams from Delhi, Banaras and Patnastating the position of law for shifting the graves under theShariat law.

13. After going through all those fatwas, this Court in GulamAbbas [(1984) 1 SCC 81 : 1984 SCC (Cri) 35] found that:(SCC p. 86, para 6)

“6. … The common theme in all these fatwas is thatunderthe Shariat law respecting of graves isthereligiousobligation of every Muslim, that shifting of dead bodies A

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after digging old graves in which they arelyingburiedisnotpermissibleandtodosowould amount to interferencewith their religious rights.”

It was further found that such religious rights of every personandeveryreligionare,however,subject to“publicorder”,themaintenancewhereofisparamountin the larger interestof the society. It was also held that if it becomes necessary toshift graves in certain situationsand exigencies of publicorder, the same would surely providearequisitesituation,especiallyasthe fundamentalrightsunderArticles25and26areexpresslymadesubjecttopublicorder.”

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 strongreliance was placed by counsel for the contesting respondentsrepresenting the Sunni community in that behalf, undoubtedlyguarantee (a) to all persons freedom of conscience and freeprofession, practice and propagation of religion and (b) toevery religious denomination or any section thereof freedomto manage its own affairs in matters of religion but both thesefundamental rights have been expressly made “subject topublic order, morality and health”. In other words, the exerciseofthesefundamental rightsisnotabsolutebut mustyieldorgiveway to maintenance of public order andtheimpugnedsuggestionwasmooted by the Courtand has now been foundto be feasible by the Chairman of the Committee in the largerinterest of the society for the purpose of maintaining publicorder on every occasion of the performance of their religiousceremonies and functions by members of both the sects…..

6. Counsel for the Sunnis relied upon five Fatwas issued bytheir religious heads (Head Muftis and Shahi Imams) fromDelhi, Banaras and Patna stating the position under SheriatLaw. The common theme in all these Fatwas is that underSheriat Law respecting of graves is the religious obligationof every Muslim, that shifting of dead bodies after diggingold graves in which they are lying buried is not permissible

and to do so would amount to interference with their religiousrights. True, this position under Sheriat Law cannot bedoubted but as explained earlier the religious rights of everyperson and every religious denomination are subject to “publicorder”, the maintenance whereof is paramount in the largerinterest of the society. For instance, the ecclesiastical edict orright not to disturb an interred corpse is not absolute as willbe clear from Section 176(3) of Criminal Procedure Codewhich permits its exhumation for the purpose of crime detectionand this provision is applicable to all irrespective of thepersonal law governing the dead. In fact, quoting a Hadit,one of the Fatwas relied upon by the contesting respondentsstates “unnecessary shifting of graves is also notpermissible”…..”

34. In Adi Saiva Sivachariyargal Nala Sangam and Othersv. Government of Tamil Nadu and Another, (2016) 2 SCC 725, thisCourt held that:

“43. …..The rights guaranteed by Articles 25 and 26, therefore,are circumscribed and are to be enjoyed within constitutionallypermissible parameters. Often occasionswillarisewhenitmaybecomenecessaryto determinewhetherabelieforapracticeclaimedand assertedisa fundamental part of the religiouspracticeof a group or denomination making such a claimbeforeembarking upon the required adjudication. A decisionon suchclaimsbecomesthedutyoftheconstitutionalcourt.Itisneitheraneasynoranenviabletaskthatthecourtsarecalledtoperform.Performanceofsuchtasksisnot enjoinedinthecourtbyvirtueofanyecclesiastical jurisdictionconferred on it but in view of its role as the constitutionalarbiter.Anyapprehensionthatthe determinationbythecourtofanessentialreligious practiceitselfnegativesthefreedomsguaranteedbyArticles25and26willhavetobedispelledonthetouchstoneofconstitutionalnecessity.Withoutsuchadeterminationtherecanbenoeffectiveadjudication whetherthe claimed right is in conformity with public order,moralityandhealthandinaccordwiththeindisputableandunquestionablenotionsofsocial welfareandreforms.Ajust AB

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balance can always be made by holding that the exercise ofjudicial power to determineessentialreligiouspractices,thoughalways availablebeinganinherentpowertoprotectthe guaranteesunderArticles25and26,the exercise thereof”mustalwaysberestrictedandrestrained.

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35. Thus, from the aforesaid, it is evident that the religious rightsof every person and every religion are, however, subject to the “publicorder”, the maintenance whereof is paramount in the larger interest ofthe society. Both these fundamental rights have been expressly madeC“subject to public order, morality and health”. The exercise of thesefundamental rights is not absolute but must yield or give way tomaintenance of public order, morality and health.

RighttohaveadecentburialasenshrinedunderArticle21of theConstitution D36. In Pt. Parmanand Katara (supra), this Court observed that:

“3. …..right to dignity and fair treatment under Article 21 ofthe Constitution of India is not only available to a living manbut also to his body after his death…..”

37. In Ashray Adhikar (supra), this Court held that:E

“1. ..…On the basis of that letter, an important question as tothe right of homeless deceased, to have a decent burial, asper their religious belief and the corresponding obligation ofthe State towards such people having arisen, the letter wastreated as a writ petition and was listed for hearing. The letterprayed for an intervention by this Court and to issue necessarydirections to all those concerned, so that a person dying onthe road, can at least claim for a decent burial or cremationas a person belonging to the society. On the basis of thatletter, notices have been issued. The Deputy Commissioner ofPolice (Headquarters) has filed a counter-affidavit, indicatingthe role of the police in such matters. On behalf of MunicipalCorporation of Delhi, Dr Satpal, Deputy Municipal HealthOfficer has filed an affidavit, indicating therein that when aperson dies on the streets and the dead body remainsunclaimed, it is handed over to MCD by the Delhi Police and F

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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 isburied in a burial ground near Delhi Gate by the Waqf Boardand Municipal Corporation of Delhi bears the expenses. Onbehalf of the Ashray Adhikar Abhiyan, a rejoinder-affidavitwas filed. In course of hearing, the Court wanted from thepetitioner, as to what guidelines the petitioner wants from theCourt and pursuant to the same, the proposed guidelines weresubmitted by the petitioner. On going through those guidelines,we find that apart from claiming a decent burial, the proposedguidelines cover a vast field, which we apprehend, would notcome 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 includesall that give meaning to a man’s life including his tradition,culture and heritage and protection of that heritage in its fullmeasure would certainly come within the compass of anexpanded concept of Article 21 of the Constitution. Yet, whenone seeks relief for breach of Article 21, one must confineoneself to some direct, overt and tangible act which threatensthe 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, freedomof conscience and free profession and practice of religion isprotected under Clause (1) of Article 25 of the Constitution.The term “religion” in that Clause need not necessarily belinked to any particular religion as is understood as a religiousdenomination. It is a matter of faith and of one’s ownconscience which could trigger the profession and practiceof what may be religion in the larger sense to a particularindividual. With this concept in mind, it needs to be delineatedthat it is not the religious practices of the different religiousdenominations which matter in such instances. It is a matterof connectivity with the person who has died and the nearrelatives may be in whatever degree of relationship.

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Fundamentally, human relationship between the parent andchild, husband and wife, grandparent and grandchild, etc. isnot based on any religious tenet. It is a matter of faith andconscience of every individual. If such a person is to takerecourse to any practice and free profession on the foundationof freedom of conscience in terms of Clause (1) of Article 25of the Constitution of India, it could get abridged only by thereciprocal covenant that such activity should be subject topublic order, morality and health and to other provisions ofPart III of the Constitution. This is the inbuilt mode ofcontrolling such activities even in terms of Clause (1) of Article25. The eligibility of a person to perform the funeral rites, beit connected to cremation or burial, may be sometimes guidedby factors which may be akin to accepted practice even inreligious denominations. If we were to look at the variedpractices among the Hindus as a whole or differentdenominations of Hindus, one thing is clearly certain; thefacility to provide ritualistic offerings by way of water, flowersor even certain grains are quite often seen as fundamentallyfor the satisfaction of the person making such offer to thedead before burial/cremation, as the case may be. Postcremation rites including, receiving the mortal remains in theform of ashes and bones which are treated as sacred to thenear relatives of the departed and further handling of thosematerials in accordance with faith and belief also standsaccepted in such communities (profitable reading in thisregard can be had from Garuda Purana, Vishnu Purana andother ancient Hindu texts and scriptures). In so far asChristians are concerned, if one were to look at differentdenominations, it can be seen that there are practices, whichmay with slight variations, generally provide for prayersbefore the dead bodies are disposed of by burial and byoffering prayers even after disposal on different dates andtimes depending upon the faith, belief and practice in differentChurches. A perusal of canons would show that differentritualistic processes are delineated for such matters. We havementioned it only to indicate that there are different practicesavailable. In so far as the Muslims are concerned, whateverbe the difference in beliefs and practices among the Hanafis, who are treated as a majority group of Sunnis in India, onone hand, and the Shias on the other hand, one clear threadof connectivity is the faith and belief that the disposal of humanremains is a must as well as post Kabar (Burial) rituals(Certain passages from Al-Bahr-ur-Raiq will buttress thisaspect). The family also intends to have its own practicescarried forward to the extent it relates to their faith and belief.We refer to all these only to demonstrate that by and large theIndian community always has the desire for intricate practicesin the form of rituals with the participation of near relativesof a deceased, following what could be permissible undergiven circumstances…..

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23. …..therightofthefamilyofaCovid-19victimtoperformthe last rites before the cremation/burial of the deceasedperson is a right akin to Fundamental Right within themeaning of Article 21 of the Constitution of India.Whileexercisingtheirpowertoimposerestrictions on citizens intheir way of life in the wake of outbreak of an endemic likeCovid-19, a fine balance must be struck bytheStateandthelocalself-governmentinstitutions so that the aforesaid rightof a citizen to perform the obsequiesofhisnearanddearonesdoesnotstand abridgedorabrogatedexceptingforverycompelling reasons’’

40. In Anandhi Simon v. State of Tamil Nadu, Represented byChief 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 isguaranteed under Article 21 of the Constitution of India hasbeen interpreted by the Hon’ble Supreme Court in many cases.There are lot of rights which are included in Article 21 suchas right to privacy, right against solitary confinement, rightto legal aid, right to speedy trial etc. The Hon’ble SupremeCourt in many cases has also observed and interpreted thatright to have a decent burial is also included in Article 21 ofthe Constitution of India. The right to human dignity is not A

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restricted to living human being but is available even afterthe death also…..

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34. Insofarastheexhumation for the purpose ofenablingthe family members of the deceased to performtheirreligiousceremoniesandtoburythedeadbodyatanappropriateplaceof their choice is concerned, thereisalegislativevacuum.EventhoughunderSection176Cr.P.C. and Section 174(1)Cr.P.C, the Magistrate andthe Officer-in-charge of the PoliceStation are having thepowers to order for exhumation, thosecases do not dealwiththecaseonhand,wheretheburiedpersonorhisfamilymembersarenotinvolvedinanycriminaloffence.

35. (d) In Common Cause v. Union of India reported in(2008) 5 SCC 511, the Hon’ble Supreme Court observed thatif there is a buffer zone unoccupied by the legislature orexecutive which is detrimental to the public interest, judiciarymust occupy the field to sub- serve public interest.

36. The case on hand also falls under the aforementionedcategory where there is a legislative vacuum. Thereisnolegislation in India dealing withcases where family membersseek for exhumation of thedeadbodyforthepurposeofburyingthesameandforperformingtheceremoniesintheplacemeantfortheirreligiousfaith.”

41. In Pradeep Gandhy (supra), the Bombay High Court held “38. …..In the system of governance prevailing in our country,it is highly unlikely that a Governmental decision would pleaseeach and every citizen. While dissent on valid grounds couldcontribute to newer developments in the matter of framing ofpolicies, resentment of the nature put forth by the Petitionersin WP-I leaves a bad taste in the mouth. We have found thepetitioners to be rather insensitive to others’ feelings. Thefounding fathers of the Constitution felt that the people ofIndia would strive to secure to all its citizens FRATERNITY, assuring the dignity of an individual. That is the preambularpromise….. we find little reason to deprive the dead of the lastright, i.e., a decent burial according to his/her religiousrites…..”

42. In S. Sethu Raja (supra), the Madras High Court held that:

“18. The fundamental right to life and personal libertyguaranteed under Article 21 of the Constitution has beengiven an expanded meaning by Judicial pronouncements. Theright to life has been held to include the right to live withhuman dignity. By our tradition and culture, the same humandignity (if not more), with which a living human being isexpected to be treated, should also be extended to a personwho is dead. The right to accord a decent burial or cremationto the dead body of a person, should be taken to be part ofthe 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 HighCourt held that:

“5. …..It is expected that Patna Medical College & HospitalOfficials or the State Officials will see to it that the disposalof unclaimed and unidentified dead bodies are done inaccordance with law with utmost respect to the dead and incase it is verifiable the last rites may be in accordance withknown 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’ inArt 21, would include a dead person in a limited sense andthat his rights to his life which includes his right to live withhuman dignity, to have an extended meaning to treat his deadbody with respect, which he would have deserved, had hebeen alive subject to his tradition culture and the religion,which he professed. The State must respect a dead person byallowing the body of person to be treated with dignity andunless it is required for the purposes of establishing a crimeto ascertain the cause of death and be subjected to postmortemor for any scientific investigation, medical education or to A

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ScopeandPowersoftheSupremeCourtunderArticle136of theConstitution B

45. Article 136 of the Constitution empowers the Supreme Courtto grant special leave in its discretion against any judgment, decree,determination, sentence or order in any cause or matter passed or madeby any court or tribunal except by any court or tribunal constituted by orunder any law relating to the armed forces. It reads as under:

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“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 matterpassed or made by any court or tribunal in the territory of India.

D(2) Nothing in clause (1) shall apply to any judgment, determination,sentence or order passed or made by any court or tribunalconstituted by or under any law relating to the Armed Forces.”

46. The jurisdiction conferred by Article 136 is divisible into twostages: the first stage is upto the disposal of prayer for the special leaveEto file an appeal and the second stage commences if and when the leaveto appeal is granted and the special leave petition is converted into anappeal. The legal position as summarised by this Court in Kunhayammedv. State of Kerala, (2000) 6 SCC 359; affirmed in Khoday DistilleriesLtd. v. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd., (2019)F4 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 petitionershould be granted such leave or not. While hearing suchpetition, the Court is not exercising its appellatejurisdiction; it is merely exercising its discretionaryGjurisdiction to grant or not to grant leave to appeal.The petitioner is still outside the gate of entry thoughaspiring to enter the appellate arena of the SupremeCourt. Whether he enters or not would depend on thefate of his petition for special leave.

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(b) If the petition seeking grant of leave to appeal isdismissed, it is an expression of opinion by the Courtthat a case for invoking appellate jurisdiction of thecourt was not made out.

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(c) If leave to appeal is granted, the appellate jurisdictionof the court stands invoked; the gate for entry inBappellate arena is opened. The petitioner is in and therespondent may also be called upon to face him, thoughin an appropriate case, in spite of having granted leaveto appeal, the Court may dismiss the appeal withoutnoticing the respondent.

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(d) In spite of a petition of special leave to appeal havingbeen filed, the judgment, decree or order against whichleave to appeal has been sought for, continues to befinal, effective and binding as between the parties.Once leave to appeal has been granted, the finality ofDthe judgment, decree or order appealed against is putin jeopardy though it continues to be binding andeffective between the parties unless it is a nullity orunless the Court may pass a specific order staying orsuspending the operation or execution of the judgment,decree or order under challenge. [ Id, 372, para 14.]”E

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47. In Pritam Singh v. State, AIR 1950 SC 169, the ConstitutionBench of this Court has explained the scope and powers of this Courtunder Article 136 of the Constitution in detail:

“9. On a careful examination of Article 136 along with theprecedingarticle,itseemsclearthatthewide discretionarypowerwithwhichthisCourtisinvested under it is to beexercised sparingly and in exceptional casesonly,andasfaras possible a more or less uniform standard should be adoptedin granting special leave in the wide range of matters whichcan come up before it under this article.By virtue of this article,we can grant special leave in civil cases, in criminal cases, inincome tax cases, in cases which come up before different kindsof tribunals and in a variety of other cases. The only uniformstandard which in our opinion canbelaiddowninthecircumstancesisthatCourt should grant special leave to F

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Aappeal only in those cases wherespecialcircumstancesareshowntoexist. The Privy Council have tried to lay down fromtime to time certain principles for granting special leave in criminalcases, which were reviewed by the Federal Court in Kapildeov. King. It is sufficient for our purpose to say that though we arenot bound to follow them too rigidly since the reasons, constitutionalBand administrative, which sometimes weighed with the PrivyCouncil, need not weigh with us, yet some of those principlesare useful as furnishing in many cases a sound basis for invokingthe discretion of this Court in granting special leave. Generallyspeaking,thisCourtwillnotgrantspecialleave,unlessitisCshownthatexceptionaland special circumstances exist, thatsubstantial and grave injustice has been done and that thecase in question presentsfeaturesofsufficientgravitytowarranta reviewofthedecisionappealedagainst.Since thepresent case does not in our opinion fulfil any of these conditions,we cannot interfere with the decision of the High Court, and theDappeal must be dismissed.”

48. A three-Judge Bench of this Court in the case of Hem Raj,Son of Devilal Mahajan of Bijainagar, Condemned Prisoner, atEPresent Confined in the Central Jail, Ajmer v. State of Ajmer, AIR1954 SC 462, held as under:

“2. Unless it is shown that exceptional and specialcircumstances exist that substantial and grave injustice hasbeen done and the case in question presents features ofFsufficient gravity to warrant a review of the decision appealedagainst, this Court does not exercise itsoverridingpowersunderArticle136(1)oftheConstitutionandthecircumstancethatbecausetheappealhasbeenadmittedbyspecialleavedoesnot entitletheappellanttoopenoutthewholecaseandcontestallthefindingsoffactandraiseeverypointwhichGcouldberaisedintheHighCourt.Even at thefinalhearingonlythosepointscanbeurgedwhicharefittobeurgedatthepreliminarystagewhentheleaveto appeal is asked for.The question for consideration is whetherthistestissatisfiedineitherofthesetwoappeals. After hearing the learnedcounsel in both the appeals we are satisfied that none of them H

raise any questions which fall within the rule enunciatedabove.”

49. The Constitution Bench of this Court in the case of P.S.R.Sadhanantham v. Arunachalam and Another, (1980) 3 SCC 141, hasexplained the Article 136 of the Constitution as under:

“7. …..In express terms, Article 136 does not confer a rightof appeal on a party as such but it confers a wide discretionarypower on the Supreme Court to interfere in suitable cases.The discretionary dimension is considerable but that relatesto the power of the court. The question is whether it spells byimplication, fair a procedure as contemplated by Article 21.In our view, it does. Article 136 is a special jurisdiction. It isresiduary power; it is extraordinary in its amplitude, its limit,when it chases injustice, is the sky itself. This Courtfunctionally fulfils itself by reaching out to injustice whereverit is and this power is largely derived in the common run ofcases from Article 136. Is it merely a power in the court to beexercised in any manner it fancies? Is there no procedurallimitation in the manner of exercise and the occasion forexercise? Is there no duty to act fairly while hearing a caseunder Article 136, either in the matter of grant of leave or,after such grant, in the final disposal of the appeal? We havehardly any doubt that here is a procedure necessarily implicitin the power vested in the summit court. It must be rememberedthat Article 136 confers jurisdiction on the highest court. Thefounding fathers unarguably intended in the very terms ofArticle 136 that it shall be exercised by the highest judges ofthe land with scrupulous adherence to judicial principles wellestablished by precedents in our jurisprudence. Judicialdiscretion is canalised authority, not arbitrary eccentricity.Cardozo, with elegant accuracy, has observed: [BenjaminCardozo : The Nature Of The Judicial Process, Yale UniversityPress (1921)]

“The Judge, even when he is free, is still not wholly free.He is not to innovate at pleasure. He is not a knight-errantroaming at will in pursuit of his own ideal of beauty or of A

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goodness. He is to draw his inspiration from consecratedprinciples. It is not to yield to spasmodic sentiment, to vagueand unregulated benevolence. He is to exercise a discretioninformed by tradition, methodized by analogy, disciplinedby system, and subordinated to ‘the primordial necessity oforder in the social life’. Wide enough in all conscience isthe field of discretion that remains.”

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8. It is manifest that Article 136 is of composite structure, ispower-cum-procedure — power in that it vests jurisdiction inthe Supreme Court, and procedure in that it spells a mode ofhearing. It obligates the exercise of judicial discretion andthe mode of hearing so characteristic of the court process. Inshort, there is an in-built prescription of power and procedurein terms of Article 136 which meets the demand of Article 21.

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9. We may eye the issue slightly differently. If Article 21 istelescoped into Article 136, the conclusion follows that fairDprocedure is imprinted on the special leave that the court maygrant or refuse. When a motion is made for leave to appealagainst an acquittal, this Court appreciates the gravity of theperil to personal liberty involved in that proceeding. ItisfairtoassumethatwhileconsideringthepetitionunderArticleE136thecourt will pay attention to the question of liberty, theperson who seeks such leave from the court, his motive andhis locusstandiandtheweightyfactorswhichpersuade thecourt to grant special leave. When this conspectus ofprocessualcircumstancesandcriteriaplayuponthejurisdictionofthecourtunderArticle136,itis reasonabletoFconcludethatthedesideratumoffairprocedureimpliedinArticle21isadequatelyanswered.

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11. The wider the discretionary power the more sparingitsexercise. Times out of number this Court has stressed thatthoughpartiespromiscuously“provoke”this jurisdiction, thecourt parsimoniously invokes the power. Moreover, the courtmay not, save in special situations, grant leave to one who isnot eo nomine a party on the record.Thus,procedural G

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limitationsexistandare governedbywellwornrulesofguidance.”

50. Thus, the principles of law discernible from the aforesaid arethat unless, it is shown that exceptional and special circumstances exist;that substantial and grave injustice has been done and the case and questionpresents features of sufficient gravity to warrant a review of the decisionappealed against, this Court would not exercise its overriding powersunder Article 136 (1) of the Constitution. The wide discretionary powerwith which this Court is invested under Article 136 is to be exercisedsparingly and in exceptional cases only. Keeping these principles in mind,we need to decide whether the relief prayed for by the appellant shouldbe granted or not?

ConditionoftheBodyafterBurial

51. Even the writ court had allowed disinterment subject to thecondition that the body should be found to be in a deliverable state. Itfurther stated that if the body is found to be highly putrefied then it maypose a risk to public health and hygiene. In such a situation the family ofthe deceased would only be allowed to perform the last rites in thegraveyard itself.

52. It has been argued on behalf of the appellant that the respondentsthemselves had disinterred the dead bodies of two persons, who werekilled along with the appellant’s son. One of them was shot dead by aforeign militant, while the other was killed during the crossfire and theywere disinterred within two days of burial on the directions of DistrictMagistrate Kupwara and handed over to their next of kin for performingtheir last rites in their own way. It can be easily assumed that the bodiesmust not have decomposed much in two days thereby leaving them in adeliverable state.

53. The appellant himself has relied on an expert, namely, Dr.Arpad A. Vass, a Senior Staff Scientist at the Oak Ridge NationalLaboratory and Adjunct Associate Professor at the University ofTennessee in Forensic Anthropology, who has stated that decompositionof the human body begins around 4 minutes after a person dies. Theexpert has said that the body starts to liquify after one 1 month ofdecomposition. As each day passes by, more putrefaction is undergone A

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Aby 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 advancedstage of putrefaction. Almost 9 months have passed post burial which issuggestive that the body may not be in a deliverable state. It will be toomuch at this stage to disinter the body. The dead should not be disturbedand some sanctity should be attached to the grave.B

54. It goes without saying that the right to live a dignified life asenshrined under Article 21 of the Constitution is not only available to aliving person but also to the “dead”. Even a dead person has the right oftreatment to his body with respect and dignity which he would havedeserved had he been alive, subject to his tradition, culture and religionCwhich he professed. These rights are not only for the deceased but, hisfamily members also have a right to perform the last rites in accordancewith the religious traditions. We are of the view that it would have beenappropriate and in fitness of things to hand over the dead body of thedeceased to the family members, more particularly, when a fervent requestDwas made for the same. It is of course true that for any compellingreasons or circumstances or issues relating to public order etc. moreparticularly in cases of encounter with the militants the agency concernedmay decline to part with the body. These are all very sensitive mattersinvolving security of nation and as far as possible the court should notinterfere unless substantial & grave injustice has been done. Although,Efor some reason or the other, the body of the deceased was not handedover to the family members yet the same was buried with respect &dignity, with the help of the Auqaf Committee at the Wadder PayeenGraveyard. We are convinced of one thing that the body was buriedwith dignity. There is nothing on record to indicate that the dead bodyFwas dealt with in any manner insulting or hurting the religious feelings ofthe family members.

55. However, what is not appealing to us is the vociferoussubmission on behalf of the appellant that with a view to remedy thewrong, as alleged, this Court should direct the respondents to exhumeGthe body and permit the appellant and his family members to thereafterperform the rituals. It is for this very wrong as alleged that the HighCourt has awarded a monetary compensation of the amount ofRs. 5,00,000/-.

56. After a body has been buried, it is considered to be in theHcustody of the law; therefore, disinterment is not a matter of right. The disturbance or removal of an interred body is subject to the control anddirection of the court. The law does not favour disinterment, based onthe public policy that the sanctity of the grave should be maintained.Once buried, a body should not be disturbed. A court will not ordinarilyorder or permit a body to be disinterred unless there is a strong showingof necessity that disinterment is within the interests of justice. Eachcase is individually decided, based on its own particular facts andcircumstances.

57. The respondents have stated on oath that the body of thedeceased was buried with all honour. The body was first washed andthereafter wrapped in a fresh white cloth. The prayers were alsoperformed at the time of the burial. There is nothing to indicate that thedeceased was not given a decent burial as enshrined under Article 21 ofthe Constitution. The right to dignity and fair treatment under Article 21of the Constitution is not only available to a living man but also to hisbody after his death. We, as a court of law, respect the emotions andsentiments expressed by the appellant as the father of the deceased.However, the court of law should not decide the rights of the partiesconsidering their sentiments. The court of law has to decide the matterin accordance with law, more particularly, keeping in mind the doctrineof Rule of Law.

58. We take notice of the fact that India has no legislation relatingto exhumation except Section 176(3) of the CrPC. As noticed by theMadras High Court in the case of Anandhi Simon (supra), very fewcountries are having a legislation in regard to exhumation. One suchlegislation available is in Ireland under Section 46 of the LocalGovernment (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 appropriatelegislation on exhumation so as to tackle the situations like the one onhand.

60. We are of the view that the relief granted by the High Courtas contained in para 21 of the impugned judgment can be termed as just,proper and equitable. We direct the respondents to comply with thedirections issued by the High Court, as contained in para 21 of theimpugned judgment and order.

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272SUPREME COURT REPORTS

[2022] 11 S.C.R.

A61. In the result, this appeal fails and is hereby dismissed with no order as to costs.

62. Pending application, if any, also stands disposed of.

Ankit Gyan

B(Assisted by : Aarsh Choudhary, LCRA)

Appeal dismissed.

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