[Hyderpora encounter] Plea in Supreme Court against Jammu & Kashmir High Court stay on exhuming body of Amir Magrey

The father of Amir Magrey, one of the four persons killed in last year’s controversial encounter at Hyderpora in Srinagar, has moved Supreme Court challenging an order of the Jammu & Kashmir High Court staying the exhumation of his son's body [Mohammad Latief Magrey vs UT of J&K]. .The matter was mentioned by Senior Advocate Anand Grover before the vacation bench of Justices CT Ravikumar and Sudhanshu Dhulia. The bench directed that the matter be listed on Monday, June 27. .A division bench of the Jammu and Kashmir High Court had on June 3 stayed the operation of a May 27 judgment of a single-judge of the High Court directing the government authorities to exhume the body of Amir Magrey.The single-judge had said that the right to life as guaranteed by Article 21 of the Constitution of India includes right to live with human dignity and decency and would extend to treat the dead body of a deceased person with respect."Without dilating much on the issue, it can be said to be well settled that right to life and liberty guaranteed to a citizen by Article 21 of the Constitution of India includes right of the citizen to live with human dignity and this right to live with human dignity even extends after death though in a limited extent," the judgment had said.The single-judge had directed respondents to make arrangements for exhumation of the body/remains of the deceased from the Wadder Payeen graveyard in the presence of petitioner, which was denied earlier by the authorities."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," the Court had added.Pertinently, the single-judge had directed that in such a situation, i.e. if the body is putrefied and not in a deliverable state, the government should pay to the petitioner compensation of ₹5 lakh for deprivation of his right to have the dead body of his son..The judgment was stayed by the division bench on appeal by the Union Territory. The plea before the Supreme Court has contended that the order of the division bench is in gross violation of Articles 21 and 25 of the Constitution of India which uphold and protect right of the deceased to a decent burial by the next of kin following the religious ceremonies and practices."Even if it is accepted for sake of argument that the Petitioner’s son was a confirmed terrorist, it makes no difference inasmuch he is entitled to a decent burial and last rites as per his religious practices under Article 21 and Article 25 of the Constitution," the petition stated..The petitioner further opposed the argument of the respondents that if the body of petitioner’s son is allowed to be exhumed, it will send a negative message and will give rise to a flood of similar petitions."No court much less a Constitutional court can be deterred by a possibility of the future litigation seeking enforcement of the fundamental rights," reads the appeal," the plea said.