The Delhi High Court on Wednesday refused to entertain a public interest litigation (PIL) petition seeking the removal of graves of Kashmiri separatist leaders Maqbool Bhat and Afzal Guru from Delhi's Tihar Jail.

A Division Bench of Chief Justice Devendra Kumar Upadhyaya and Justice Tushar Rao Gedela said that it cannot entertain the plea to remove the graves since that is a decision to be taken by the government taking into account law and order.

Nevertheless, the Court agreed with the petitioner's submission that the graves cannot become a pilgrimage or glorification site.

However, the Court said that there should be some empirical data on the site being glorified and a PIL alleging the same cannot be based on newspaper reports.

The petitioner, Vishwa Vedic Sanatan Sangh, then sought permission to withdraw the PIL with liberty to file a fresh one with data about the site being visited by others and glorified.

"Heard the counsel for the petitioner. After arguing at some length, he seek permission to withdraw the plea and file a fresh one. The petition is dismissed as withdrawn," the Court directed.

The petition argued that the presence of the graves in Tihar has turned the jail "into a site of radical pilgrimage where extremist elements gather to venerate convicted terrorists".

"This not only undermines national security and public order, but also sanctifies terrorism in direct contravention of the principles of secularism and rule of law under the Constitution of India," the plea stated.

It asked for the Bhat and Guru's mortal remains to be relocated to a secret location "to prevent glorification of terrorism and misuse of jail premises".

"The continued existence of these graves inside a State-controlled prison is illegal, unconstitutional, and against public interest... It violates the express provisions of the Delhi Prisons Rules, 2018, which mandate the disposal of the bodies of executed prisoners in a manner that prevents glorification, ensures prison discipline, and maintains public order," the plea said.

When the matter was taken up for hearing today, the Court asked whether there is any law prohibiting graves in prison.

"We have seen your prayers. Tell us which law has been infringed and which fundamental rights of yours have been infringed by this. Something you wish cannot become the subject matter of a PIL," the Court said.

The counsel for the petitioner referred to the Prison Rules.

"My submission is that these rules are clear that it (graves) have to be transported outside," the lawyer said.

"No, that is not the emphasis. It says if the body has to be transferred, it has to be done with all solemnity, that is the respect for the dead. That is all. It does not say each and every body has to be necessarily taken out of the jail," the Court replied.

"There is no provision which says that prisoner's dead body has to be cremated in the jail," the lawyer said.

"Is there a prohibition," the Court asked.

"Yes. Delhi is governed by a municipal law. Delhi Municipal Corporation Act. Graves are to be in burial grounds. Municipal Corporation provides for burial grounds and crematoriums. It is in public domain that some people are committing crimes and going to jail to pay homage at these graves," the counsel replied.

"You say it is causing nuisance. Nuisance to prisoners? Has there been a complaint? What kind of nuisance are you talking about," the Bench asked.

"People belonging to that community, Afzal Guru's community, are committing crimes to pay homage to the graves," the lawyer replied.

He also referred to how the grave could be a public nuisance and could cause health hazards.

However, the Court disagreed with the argument.

"This provision has been made... say there is a dead animal on the street or someone's premises then only that nuisance has to be removed. It is not for removal of graves. If the grave has been put in with the consent of the authorities. Jail is not a public place. It is a place owned by the State established for the specific purpose of incarceration of convicts," the Bench remarked.

The petitioner then said that existence of such graves amount to glorification of terrorism.

"The existence of grave of terrorists, this is a kind of glorification of act of terrorism," the petitioner's counsel said.

However, the Court made it clear that the petitioners have to make out a case under law and courts cannot read on prohibition which is absent in law.

"We requested you at the very start of this case that you have to make out a case of infringment of your rights. Something that I or my brother may want cannot be agitated in a PIL. We are a democratic society. There are other forums to agitate those issues. We do not, prima facie, agree with you that it is a nuisance (under the law) which is to be removed by the authorities. Where is the prohibition? If prohibition is not there can the court read into it a prohibition? Are we the policymakers? This lies in their (authorities) realm," the Bench made it clear.

It also questioned the delay by the petitioner in raising the issue after noting that the graves are nearly 12 years old.

"It has been 12 years. Why are you raising this issue now," the Bench demanded.

"Because these graves are being treated as a site of pilgrimage by a particular community... This cannot be allowed in a secular community," the petitioner's counsel responded.

The Court then asked him on what basis the said submission was being made.

"What material do you have to show that it is being treated as a pilgrimage," the Bench asked.

"I have shown newspaper reports," the counsel said.

"You are a seasoned advocate of this court. Are you asking us to rely on news reports or social media posts? Where is the empirical data? The government has taken a call (to have the graves in Tihar). For what you are saying (people paying homage at the graves), there is no empirical data," the Court replied.

However, the Court agreed that there should not be pilgrimage or glorification of the site and it can direct jail authorities to stop that provided empirical data is furnished to that effect,

"We agree that there should be no pilgrimage or glorification but there has to be data on this. We can direct the jail authorities to stop that but removing the grave after 12 years."

The Court also said that the government took a call to have the grave inside the jail to avoid law and order issues.

"Somebody's last rites are to be respected. At the same time, we need to ensure that no law and order issue arises. Government decided to have the burial in jail keeping these issues in mind. Can we challenged that 12 years later?" the Bench asked.

"I will withdraw and refile with data," the petitioner's counsel said while withdrawing the plea.

The PIL was filed through advcoates Sneh Vardhan and Pratibha Sinha.

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