NEW DELHI: Noting that once a body is buried, it should not be disturbed, the Supreme Court on Monday rejected a plea by the father of Amir Magrey, who was killed in an encounter between the police and militants in Hyderpora to exhume his son’s body for last rites.
A bench of Justices Surya Kant and JB Pardiwala said that the body was buried with dignity and that was nothing to indicate that the body was dealt with in any manner insulting or hurting the family’s religious feelings.
Upholding J&K HC’s order of allowing the family to perform religious rites but declining to grant permission to disinter the body of the deceased for the purpose of religious rituals, the bench said,
“After a body has been buried, it is considered to be in the custody of the law; therefore, disinterment is not a matter of right. The disturbance or removal of an interred body is subject to the control and direction of the court. The law does not favour disinterment, based on the public policy that the sanctity of the grave should be maintained. Once buried, a body should not be disturbed. A court will not ordinarily order or permit a body to be disinterred unless there is a strong showing of necessity that disinterment is within the interests of justice. Each case is individually decided, based on its own particular facts and circumstances.”
Noting that India has no legislation relating to exhumation expect one provision in the Code of Criminal Procedure, the Court asked the Centre to consider enacting an appropriate law on exhumation.
The court's suggestion came while dismissing the plea of a man in Kashmir seeking to exhume the body of his son, who was dubbed a terrorist and killed in an encounter in November 2021 and to permit the family to conduct his last rites at the same graveyard.
Observing that the exercise of fundamental rights is not absolute but must give way to the maintenance of public order, morality and health, the top court said after a body has been buried, it is considered to be in the custody of the law, therefore, disinterment is not a matter of right.
The apex court's judgement came on a plea filed by Mohammad Latief Magrey seeking the exhumation of the body of his son Aamir Magrey.
(With PTI Inputs)