By Basit Amin Makhdoomi
Srinagar– The Jammu and Kashmir High Court on Friday ordered that the body of a civilian, killed and passed off as a militant by government forces in the controversial Hyderpora encounter last year, be exhumed and handed over to the family for last rites
The single bench of Justice Sanjeev Kumar also directed the Union Territory administration to pay a compensation of Rs 5 lakh to the deceased Amir Magrey’s father, the petitioner, if the body has been decomposed or is likely to pose a risk to public health and hygiene during the burial.
On November 15 last year, police claimed to have killed a Pakistani militant and three of his associates in the Hyderpora area of the city here. However, the families of the three, alleging foul play, had said that they were innocent, prompting the police to order the inquiry. While bodies of two of the men from Srinagar were exhumed and returned to their families, the body of Amir Magrey of Ramban was not handed over to his family, forcing them to start a legal battle.
While passing the orders, the court laid reliance on a Supreme Court judgement in Ashray Adhikar Abhiyan V/s. Union of India 2002, wherein the Apex Court held that it is the obligation of the State to give a decent burial to a deceased person as per their Religious beliefs.
The court also emphasised on the judgement passed by Madras High Court S. Sethu Raja V/s The Chief Secretary, Government of Tamil Nadu and others wherein the court dealt with paramountcy of Article 21 of the constitution of India which confers the right to life and personal liberty and its application to the dead through judicial pronouncements.
The court therein had elaborated that the right to human dignity is not restricted to a living human being but available even after death.
The Court in its orders observed that right of the next of kin of the deceased to have their dear one cremated or buried as per the religious obligations and religious belief that the dead person professed during his life time, is part and parcel of right to life guaranteed under Article 21 of the Constitution of India.
“The parents and close relations of the deceased are well within their right to demand the dead body of their dear one to be cremated or buried as per their traditions, religious obligations and religious belief,” the Court said.
On the contention of the UT administration that the decision not to hand over the body of the deceased to the petitioner for performing his last rites was taken in the larger public interest and to prevent the situation of law and order going out of hand, the Court in its judgement observed that while the bodies of two of the four killed in the encounter, namely, Altaf Ahmad Bhat and Dr. Mudasir Gul were exhumed and handed over to their relatives for their last rites in the graveyards of their choice, there exist no cogent grounds to deny the similar right to the petitioner.
The judgment by Justice Sanjeev Kumar further elaborated that it transpires it was due to public pressure and demand by the relatives of Altaf Ahmad Bhat and Dr. Mudasir Gul, their bodies were allowed to be exhumed and handed over to their relatives
“And since the petitioner was a resident of Gool, a remote village in Jammu Province and did not much stay in the Valley and, therefore, his request was arbitrarily turned down. The action of the respondents is not traceable to any procedure established by law which is just, fair and equitable,” the Court said.
Parting ways, the court allowed the petition of the father of the deceased Amir Latief Magrey and directed administration to make arrangements for exhumation of the mortal remains of the deceased Amir Latief Magrey in presence of the petitioner and also directed appropriate arrangement for transportation of the body to his village for according burial in his native graveyard in accordance with the traditions, religious obligations and religious faith which the deceased professed during his life time provided it is in deliverable state.
“However, if the body is highly putrefied and is not in deliverable state the petitioner and his close relatives shall be allowed to perform last rites as per their tradition and religious belief in the Wadder Payeen graveyard itself & in that situation, the State shall pay to the petitioner a compensation of Rs. 5 lakhs for deprivation of his right to have the dead body of his son and give him decent burial as per family traditions, religious obligations and faith,” the Court said.
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