Summary
The appellant's son was one of four persons killed in an encounter at Hyderpora, Budgam on 15 November 2021 and was buried by the authorities through the Auqaf Committee at Wadder Payeen. Two of the other bodies were later exhumed and handed to relatives. A Single Judge of the J&K High Court ordered exhumation and handover of the son's body, or Rs. 5 lakh compensation if it could not be delivered. After the appellant gave up exhumation in an earlier SLP, the Division Bench allowed the family to perform Fatiha Khawani at the grave and maintained the compensation. The Supreme Court dismissed the appeal. Article 21 extends to dignified treatment of the dead and the family's right to perform last rites, but disinterment is not a matter of right. The burial had been dignified, and nearly nine months had passed. The Union may consider legislating on exhumation.
Issues
- Whether the father of a person killed in an encounter has a right under Article 21 to have the body exhumed to perform last rites nearly nine months after burial by the authorities
- Whether the Supreme Court should interfere under Article 136 with the High Court's order permitting prayers at the grave with compensation, instead of exhumation
Provisions considered
- Article 21, Constitution of IndiaThe right to dignity extends to the dead, and families have a right to perform last rites, but this does not confer a right to disinterment where the deceased was buried with dignity in accordance with religious rites. (¶¶ 36, 42, 44, 54, 57)
- Articles 25 and 26, Constitution of IndiaReligious freedoms, including Shariat principles against shifting graves, are subject to public order, morality and health (Gulam Abbas, Mohd. Hamid). (¶¶ 32, 33, 35)
- Section 176(3), Code of Criminal Procedure, 1973The only Indian legal authority for exhumation is for crime detection and similar purposes, and there is no legislation on exhumation at the family's request. (¶¶ 29, 58)
- Article 136, Constitution of IndiaThe discretionary power is exercised sparingly, only where exceptional circumstances and substantial and grave injustice are shown, which was not the case here. (¶¶ 45, 47, 48, 49, 50)
Held
- The right to a dignified life under Article 21 extends to the dead, whose bodies must be treated with the respect due to them in life according to their tradition and religion. Family members also have a right to perform last rites. It would have been appropriate to hand the body to the family, though for compelling reasons of public order, especially in encounters with militants, the authorities may decline. (¶ 54)
- Once buried, a body is in the custody of the law, and disinterment is not a matter of right. The law disfavours disturbing a grave, and a court will order exhumation only on a strong showing of necessity in the interests of justice, judged case by case. (¶¶ 27, 56)
- The State stated on oath that the body was washed, shrouded and buried with prayers through the Auqaf Committee in a magistrate's presence, so there was a decent burial. Nearly nine months had passed and the body was likely putrefied. The alleged wrong had been compensated, and sentiment cannot override the rule of law. Exhumation was therefore refused. (¶¶ 30, 31, 53, 55, 57)
- India has no legislation on exhumation apart from Section 176(3) CrPC, and the Union of India may consider enacting one. The High Court's directions permitting Fatiha Khawani at the grave and maintaining compensation of Rs. 5 lakh were just and equitable and must be complied with. (¶¶ 58, 59, 60)
Result
Appeal dismissed. The respondents were directed to comply with the High Court's directions permitting prayers at the grave and paying Rs. 5 lakh compensation; no costs.