Right to Dignified Burial vs. Public Order: Supreme Court Denies Exhumation in Mohammad Latief Magrey vs. Union Territory of Jammu and Kashmir (2022)

Date of the Judgment: 12 September 2022
Citation: Mohammad Latief Magrey vs. The Union Territory of Jammu and Kashmir & Ors., Civil Appeal No. 6544 of 2022
Judges: Justice Surya Kant and Justice J.B. Pardiwala
Can a family’s right to perform last rites for their deceased loved one outweigh concerns about public order and security? The Supreme Court of India recently addressed this complex issue in a case involving the disinterment of a body of a person killed in an encounter between the police and militants. The court had to balance the fundamental right to a dignified burial with the state’s responsibility to maintain law and order. This judgment clarifies the extent to which families can claim the right to perform last rites and the limitations on this right in the interest of public safety. The judgment was delivered by a two-judge bench of Justice Surya Kant and Justice J.B. Pardiwala.

Case Background

On November 15, 2021, an encounter occurred between militants and police in the Hyderpora area of Budgam, Kashmir. Four militants were killed, including Mohd. Amir Magrey, the son of the appellant, Mohammad Latief Magrey. Following the encounter, a First Information Report (FIR No. 193/2021) was registered at the Saddar Police Station under various sections of the Indian Penal Code, 1860, the Arms Act, and the Unlawful Activities (Prevention) Act. The bodies were taken to the Police Hospital in Srinagar for post-mortem and medico-legal formalities. The deceased were identified as Bilal Bhai (a foreign terrorist), Aamir Latief Magrey, Altaf Ahmad Bhat, and Dr. Mudasir Gull. All four bodies were buried at Handwara Zachaldara.

Subsequently, the bodies of Altaf Ahmad Bhat and Dr. Mudasir Gull were exhumed and handed over to their families. However, the body of Bilal Bhai and the appellant’s son, Amir Magrey, were not disinterred. The appellant claimed that he had approached authorities to claim his son’s body, but his requests were denied, and the body was buried at the Wadder Payeen Graveyard. The appellant then filed a writ petition in the High Court seeking the handover of his son’s body for performing last rites according to his religious beliefs.

Timeline

Course of Proceedings

The High Court initially allowed the writ petition filed by the appellant, directing the respondents to disinter the body of Amir Magrey from the Wadder Payeen Graveyard in the presence of the appellant. The single judge held that the right of next of kin to have their dear one buried as per their religious obligations is part of the right to life under Article 21 of the Constitution. The court also noted that the State had not provided a valid reason for denying the appellant the same right granted to the other two families. The single judge ordered that if the body was not in deliverable state, the State shall pay a compensation of Rs. 5 lakhs to the appellant for the deprivation of his right.

The Union Territory of Jammu & Kashmir appealed the order. The Appeal Court modified the single judge’s order, allowing the appellant and his family members (up to 10 persons) to perform the Fatiha Khawani (religious rituals/prayers after burial) at the graveyard but declined to grant permission to disinter the body. The Appeal Court upheld the compensation of Rs. 5 lakhs. The Appeal Court held that the last rites of the deceased had already been performed as per Islamic religious practices, and the prayer for exhumation cannot be accepted.

Legal Framework

The primary legal framework in this case revolves around the interpretation of Article 21 of the Constitution of India, which guarantees the right to life and personal liberty. The High Court and the Supreme Court have expanded the scope of Article 21 to include the right to a dignified life, which extends to the treatment of a dead body. The court also considered Articles 25 and 26 of the Constitution, which guarantee the freedom of conscience and free profession, practice, and propagation of religion, subject to public order, morality, and health.

The relevant legal provision is Section 176(3) of the Code of Criminal Procedure, 1973, which permits exhumation for crime detection and other pressing situations.

The Court also considered the following:

• Article 21 of the Constitution of India: Guarantees the right to life and personal liberty, which has been interpreted to include the right to a dignified life and burial.
• Article 25 of the Constitution of India: Guarantees freedom of conscience and free profession, practice, and propagation of religion.
• Article 26 of the Constitution of India: Guarantees freedom to manage religious affairs, subject to public order, morality, and health.
• Section 176(3) of the Code of Criminal Procedure, 1973: Provides for exhumation for crime detection and other pressing situations.

Arguments

Appellant’s Submissions:

• The appellant argued that he has a fundamental right under Article 21 of the Constitution to perform the last rites of his son according to Islamic rituals.
• He contended that the High Court should not have disturbed the order of the learned Single Judge directing exhumation.
• He submitted that even if his son was a militant, the police should have handed over the body to the family instead of burying it discreetly.
• The appellant confined his prayer to 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.
• The appellant clarified that he would like to wash the body with water and wrap it up with a new white cloth.

Respondents’ Submissions:

• The respondents argued that the High Court’s order was balanced and considered all relevant aspects, including public order.
• They contended that the appellant does not have a fundamental right under Article 21 to seek exhumation for performing rituals.
• They highlighted that the appellant had previously stated he would not press for exhumation.
• They argued that the last rites of the deceased had been performed as per Islamic religious practices.
• They submitted that the body would have decomposed after eight months, and exhumation would pose public health issues.
• They stated that the deceased was a hard-core terrorist and that exhuming the body could lead to glorification of terrorism, posing a threat to national security and public order.

The innovativeness of the argument by the appellant lies in the fact that he confined his prayer to only disinterment for the purpose of performing rituals and prayers, and not for re-burial.

Issues Framed by the Supreme Court

The Supreme Court framed the following issues for consideration:

1. 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 slain son?
2. 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?
3. 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 this Court in exercise of its jurisdiction under Article 136(1) of the Constitution disturb the impugned order passed by the High Court at the risk & peril of public order, health etc. and grant the relief of exhumation after almost nine months?
4. Whether the High Court in appeal committed any substantial error in passing the impugned order?

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court considered the following authorities in its decision:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• The Court relied on Yome v. Gorman and Pettigrew v. Pettigrew to emphasize the general principle against disturbing the dead.
• The Court referred to Mohd. Hamid and Another v. Badi Masjid Trust and Others and Gulam Abbas v. State of U.P. to discuss religious rights and their limitations, noting that such rights are subject to public order.
• The Court cited Adi Saiva Sivachariyargal Nala Sangam and Others v. Government of Tamil Nadu and Another to highlight that religious rights are not absolute and must be balanced with public interest.
• The Court referred to Pt. Parmanand Katara, Advocate v. Union of India to affirm that the right to dignity extends to the body after death.
• The Court referred to Ashray Adhikar Abhiyan v. Union of India to discuss the right of homeless deceased to a decent burial.
• The Court cited Ram Sharan Autyanuprasi v. Union of India to emphasize that life includes tradition, culture and heritage.
• The Court referred to Vineet Ruia v. Principal Secretary, Ministry of Health and Family Welfare, Government of West Bengal to discuss the right of the family of a COVID-19 victim to perform last rites.
• The Court cited Anandhi Simon v. State of Tamil Nadu to highlight that the right to have a decent burial is included in Article 21 of the Constitution.
• The Court referred to Pradeep Gandhy v. State of Maharashtra to discuss the right to a decent burial according to religious rites.
• The Court referred to S. Sethu Raja v. The Chief Secretary, Government of Tamil Nadu to discuss the right to accord a decent burial or cremation to the dead.
• The Court referred to Vikash Chandra @ Guddu Baba v. The Union of India & Ors. to discuss the disposal of unclaimed dead bodies with respect.
• The Court referred to Ramji Singh @ Mujeeb Bhai v. State of U.P. & Ors. to discuss that the word ‘person’ in Article 21 includes a dead person in a limited sense.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by a combination of legal principles and factual considerations. The Court acknowledged the fundamental right to a dignified burial under Article 21 of the Constitution, which includes the right to perform last rites according to religious traditions. However, the Court also emphasized that this right is not absolute and is subject to public order, morality, and health. The Court was also influenced by the fact that the body had been buried for nine months, and any attempt to exhume it could pose a risk to public health. The Court also took into consideration the fact that the last rites had already been performed and the body had been buried with dignity. The Court also considered the State’s concern that exhumation could lead to glorification of terrorism and pose a threat to national security.

Fact:Law Ratio

The Court’s decision was primarily influenced by the factual aspects of the case, such as the condition of the body, the time elapsed since burial, and the potential impact on public order. While legal principles were considered, the factual context played a more significant role in the final judgment.

Logical Reasoning:

The Court considered alternative interpretations, such as the appellant’s claim that his right under Article 21 was violated. However, the Court rejected this interpretation, emphasizing the limitations on such rights in the interest of public order and health. The Court also considered the fact that the last rites had already been performed as per Islamic religious practices. The final decision was reached after balancing all these factors.

The Court’s decision was based on the following reasons:

• The right to a dignified burial is not absolute and is subject to public order, morality, and health.
• The body would have decomposed after nine months, and exhumation could pose a risk to public health.
• The High Court had already balanced the rights of the parties and the state’s responsibility to maintain law and order.
• The last rites had already been performed as per Islamic religious practices, and the body was buried with dignity.

The Court quoted the following from the judgment:

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

“The presumption is against a change. The imprecation on the tomb at Stratford, “Curst be he that moves my bones,” whether it be Shakespeare’s own or some reverent friend’s, expresses the universal sentiment of humanity, not only against profanation, but even disturbance.”

“The exercise of these fundamental rights is not absolute but must yield or give way to maintenance of public order, morality and health.”

Key Takeaways

• The right to a dignified burial is a fundamental right under Article 21 of the Constitution but is not absolute.
• This right is subject to public order, morality, and health considerations.
• Exhumation of a body is not a matter of right and is generally disfavored by law.
• Courts will only allow exhumation in exceptional circumstances where there is a strong showing of necessity and within the interests of justice.
• The State has a responsibility to ensure that the dead are buried with dignity, even in cases involving militants.
• The Court has recognized the need for a legislation on exhumation to tackle such situations.

This judgment clarifies that while families have a right to perform last rites, this right is not absolute and can be restricted in the interest of public order and health. The judgment also highlights the importance of balancing individual rights with the state’s responsibility to maintain law and order. This case may also have implications for future cases involving the disposal of bodies in sensitive situations.

Directions

The Supreme 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. This includes allowing the appellant and his family members (maximum 10 persons) to perform Fatiha Khawani (religious rituals/prayers after burial) at the Wadder Payeen Graveyard, subject to security measures and COVID-19 guidelines. The Court also upheld the compensation of Rs. 5 lakhs awarded by the High Court.

Ratio Decidendi

The ratio decidendi of this case is that while the right to a dignified burial is a fundamental right under Article 21 of the Constitution, it is not an absolute right. It is subject to public order, morality, and health. The Court held that exhumation of a body is not a matter of right and is generally disfavored by law. In this case, the Court found that the High Court had already balanced the rights of the parties and the state’s responsibility to maintain law and order. The Court also considered the fact that the body had been buried for nine months and that exhumation could pose a risk to public health. The Court also considered the fact that the last rites had already been performed and the body had been buried with dignity. The Court also considered the State’s concern that exhumation could lead to glorification of terrorism and pose a threat to national security. Therefore, the Court held that the exhumation of the body was not warranted in this case.