New Delhi, Sep 12 : The Supreme Court on Monday dismissed the request of father to surrender the remains of his son who was killed in the Hyderpora incident in Kashmir in November of last year.The court also asked the Centre to introduce an act in connection with the exhumation of bodies since there is no legislation to take care of with the demand of relatives of the deceased.A bench of Justices Surya Kant and J.B.Pardiwala declared: “The right to dignity and fair treatment as outlined in the Article 21 of the Constitution is not limited to a living person, as well as to the body following his death.As an institution of law, will respect the feelings and emotions that the appellant has expressed as the father of the deceased.However the court of law cannot determine on the rights of the parties based on their feelings.”
The court said that once the burial of a corpse it is considered to be in the custody of the law.Therefore the disinterment process is not an issue of the law.”The removal or disturbance of the body that has been interred is under the control and guidance of the courts.The law does not favor disinterment, due to the general policy of the state that the sacredness of the grave must be preserved,” it said.
The Jammu and Kashmir administration stated under oath that the body of the deceased was laid to rest with all respect.”The body was washed first, then wrapped in new white cloth.Also, prayers were offered in the course of the burial.
There is no evidence that the deceased wasn’t provided with a proper burial as stipulated in the Article 21 of the Constitution,” noted the highest court.
The bench also stated that a court cannot normally order or allow the disinterment of a corpse unless there is a convincing argument of the need for disinterment in the interest of justice.
Each case is decided on its own by a judge based on particular facts and circumstances, the bench declared.
The court of supreme appeals said the Centre could be able to pass a suitable law regarding exhumation to address situations like the one that is currently in the news.”We are aware of the fact that India has no laws related to exhumation, besides section 176(3) of the CrPC.very few countries have laws in regards to exhumation.
One such law is in Ireland under Section 46 of the Local Government (Sanitary Services) Act 1948 and amended by Section 4 (2) and the Second Schedule of the Local Government Act, 1994,” it said.
The highest court ruled that relief given by the Jammu and Kashmir High Court was fair and just, and rejected the appeal brought by Mohammad Latief Magrey.
The court directed the state government to follow through with the direction of the high court in relation with the payment of 5 lakh rupees to the family and allow them to hold prayers on the site of the burial.
During the hearing, an advocate for the Jammu and Kashmir administration had claimed that there was no in disagreement that the deceased was a terrorist.
the CD presented to the court of appeals showed that all Islamic funeral rites were conducted in accordance with the book.
The J&K administration counsel said that, after eight months and the body has decomposed , and exhuming the body is only going to result in issues with law and order, and Magrey has lost his son, but he was an armed terrorist.
Jammu and Kashmir administration was represented by the stand counsel Taruna Ardhendumauliprasad.
In its 50-page ruling in which the court ruled: “These are all very sensitive issues that affect the safety of the nation, and as far as is possible, the court shouldn’t intervene in the event of a grave wrong has been done.However, for one reason or other the body of the deceased wasn’t given to the family members, it was burial was done with respect and dignity.”
Magrey has moved the apex court in opposition to the Jammu and Kashmir High Court order, which did NOT allow the exhumation of his son’s remains.Four persons including Aamir Magrey were killed in the gun battle in the outside of Srinagar on the 15th of November last year.The petition was submitted by the advocate Nupur Kumar.
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