In case of failure to exhume and deliver the body, the respondents shall pay Rs 5 lakh compensation to the grieved family and allow close relatives perform his last rites as per their tradition in Wadder Payeen graveyard: HC
BUNTY MAHAJAN
JAMMU, MAY 27: The Jammu Kashmir and Ladakh High Court at Srinagar on Friday ordered the J&K Government to exhume the body of Amir Latief Magrey, a Ramban youth who along with a Pakistani militant was among four people killed by police and security forces in an encounter in Srinagar during November last, and hand it over to his father for burial in his native graveyard as per religious traditions.
However, if the body is highly putrefied and is not in deliverable state, or is likely to pose risk to public health and hygiene, 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 where it is buried at present, ordered Justice Sanjeev Kumar, adding in that case, 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 which the deceased professed when he was alive.
The directions came in a petition filed by Mohammad Latief Magrey, father of the deceased who along with a Pakistani militant Bilal Bhai alias Hyder alias Saqlain was among four people killed in an encounter in Srinagar on November 15 last year. While Amir also was described as an active militant, the other two – Dr Mudasir Gul and Altaf Ahmad Bhat, both residents of Srinagar, were stated to be the associates of slain militants. Some arms and ammunition were also alleged to be recovered from them.
After the encounter, all the four bodies were shifted to Zachaldara Handwara for burial through AUqaf Committee Wadder Payeen as per religious obligations.
Totally unconvinced with police claim that Amir was a militant and killed in an encounter, the petitioner pointed out that his entire family had all along remained associated with Indian Army and other security forces in fight against militants in his area. He said that J&K’s Lt Governor following relentless protests ordered probe into the matter on November 18 last and on the same day, bodies of Dr Mudasir Gul and Altaf Ahmad Bhat were exhumed and handed over to their relatives for performing their last rites.
Placing on record the 2012 State award for bravery for showing exemplary courage in killing a militant on the spot and also various citations and commendation certificate issued by GOC-in-C of the Northern Command in 2006 to make good his point of being a nationalist and loyal to army and security forces, the petitioner pointed out that he was even deprived to have and bury the dead body of his son in his native graveyard as per traditions, religious obligations and religious faith which the deceased professed during his life time, as the respondents have very conveniently put the tag of terrorist on his son.
Referring to judgements of the supreme court and various high courts in the country giving an expanded meaning to the fundamental right to life and personal liberty guranateed under Article 21 of the Constitution, Justice Sanjeev Kumar observed that the right to life has been held to include the right to live with human dignity. “By our tradition and culture, the same human dignity (if not more), with which a living human being is expected to be treated, should also be extended to a person who is dead,’’ he observed, adding that the right to accord a decent burial or cremation to the dead body of a person, should be taken to be part of the right of such human dignity.
He rejected the Central and J&K governments’ opposition that exhumation of Amir’s body on the ground that the demand of return of the dead body in the instant case is not the demand for a body of an ordinary citizen killed in an action of security forces, but it is a dead body of a terrorist who has been killed during encounter and if, for any reason, the return of dead body of terrorist like the son of the petitioner, is considered, not only it will send wrong message in the society, but it would also ead to greater law and order and security concerns.
“From the reply of the respondents as also from the documents submitted in sealed cover it is not coming forth as to why the request of the petitioner for return of body of his son Amir Latief Magrey was not conceded and his body exhumed along with Mohd Altaf Bhat and Dr. Mudasir Gul,’’ Justice Sanjeev Kumar observed.
Pointing out that the respondents have tried to draw distinction by submitting that as per the investigation conducted by the SIT, the deceased son of the petitioner was a confirmed terrorist whereas the other two killed, namely, Altaf Ahmad Bhat and Dr. Mudasir Gul were only associates of the terrorists, the judge observed that “I do not find any logic or sense in distinction so made by the respondents’’.
“It transpires that due to public pressure and demand by the relatives of the two deceased namely, Altaf Ahmad Bhat and Dr. Mudasir Gul, the respondents relented and permitted their dead bodies to be exhumed and handed over to their relatives,’’ he said, adding that “since the petitioner was a resident of Gool, a remote village in Jammu Province and did not have much say 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. At least none was brought to the notice of this Court. The decision of the respondents not to allow the petitioner to take away dead body of his son to his native village for last rites was per-se arbitrary and falls foul of Article 14 of the Constitution of India,’’ he held.
The apprehension of law and order getting vitiated at this point of time also appears to be illusory, he observed, adding that when the respondents could maintain the law and order situation when the dead bodies of two, namely, Altaf Ahmad Bhat and Dr. Mudasir Gul were exhumed and handed over to their relatives for last rites on November 18, it is not difficult for them to make necessary arrangements for exhumation of the dead body of Amir Latief Magrey, the son of the petitioner and transport the same in proper escort to Village Thatharka Seripora Tehsil Gool District Ramban. The respondents can make appropriate arrangements to ensure that law and order situation does not get vitiated in any manner, he added.
Allowing the petition, Justice Sanjeev Kumar directed the respondents to make arrangements for exhumation of the body/remains of the deceased Amir Latief Magrey from the Wadder Payeen graveyard in presence of the petitioner, besides making appropriate arrangement for its transportation to the village of the petitioner 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. The respondents are free to impose any reasonable terms and conditions in respect of exhumation, transportation and burial of the dead body of Amir Latief Magrey, the son of the petitioner, he added.
Since the dead body of the deceased must be in advance stage of putrefaction, as such, it would be desirable that the respondents act with promptitude and do not waste any further time. However, if the body is highly putrefied and is not in deliverable state or is likely to pose risk to public health and hygiene, 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 which the deceased professed when he was alive, Justice Sanjeev Kumar ordered.