Religious Rights Of Every Person Subject To Public Order: Supreme Court


New Delhi:

Religious rights of each individual are topic to “public order”, the Supreme Court mentioned on Monday whereas dismissing the plea of a person in search of to exhume the physique of his son, who was dubbed a terrorist and killed in an encounter in Kashmir in November 2021, so the household may conduct his final rites in the identical graveyard.

Observing that the train of basic rights is just not absolute however should give option to the upkeep of public order, morality and well being, the highest court docket mentioned the correct to reside a dignified life as enshrined below Article 21 of the Constitution is just not solely obtainable to a dwelling individual but additionally to the “dead”.

“Religious rights of every person and every religion are, however, subject to the public order, the maintenance whereof is paramount in the larger interest of the society. Both these fundamental rights have been expressly made ‘subject to public order, morality and health’.

“The train of those basic rights is just not absolute however should yield or give option to the upkeep of public order, morality and well being,” a bench of Justice Surya Kant and J B Pardiwala said.

The apex court’s judgement came on a plea filed by Mohammad Latief Magrey seeking exhumation of the body of his son Aamir Magrey.

Refusing to disinter the body of the deceased for the purpose of religious rituals, the top court said almost nine months have passed post burial which is suggestive that the body may not be in a deliverable state.

The top court said it will be too much at this stage to disinter the body and that “the lifeless” should not be disturbed and some sanctity should be attached to the grave.

“It goes with out saying that the correct to reside a dignified life as enshrined below Article 21 of the Constitution is just not solely obtainable to a dwelling individual but additionally to the lifeless.”

“These rights are usually not just for the deceased however his members of the family even have a proper to carry out the final rites in accordance with the non secular traditions. We are of the view that it will have been applicable and within the health of issues handy over the lifeless physique of the deceased to the members of the family, extra notably, when a fervent request was made for a similar,” the bench said.   

The apex court said for any compelling reasons or circumstances or issues relating to public order etc. more particularly in cases of encounter with the militants the agency concerned may decline to part with the body.

“These are all very delicate issues involving the safety of the nation and so far as attainable the court docket mustn’t intrude   except substantial & grave injustice has been accomplished.

“Although, for some reason or the other, the body of the deceased was not handed over to the family members yet the same was buried with respect & dignity, with the help of the Auqaf Committee at the Wadder Payeen Graveyard,” the court docket mentioned.

The high court docket mentioned after a physique has been buried, it’s thought-about to be within the custody of the legislation, subsequently, disinterment is just not a matter of proper.   “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 physique shouldn’t be disturbed. A court docket won’t ordinarily order or allow a physique to be disinterred except there’s a sturdy exhibiting of necessity that disinterment is inside the pursuits of justice,” the bench said.

The top court noted that the respondents have stated on oath that the body of the deceased was buried with all honour.   

“The physique was first washed and thereafter wrapped in recent white fabric. The prayers had been additionally carried out on the time of the burial. There is nothing to point that the deceased was not given an honest burial as enshrined below Article 21 of the Constitution.

“The right to dignity and fair treatment under Article 21 of the Constitution is not only available to a living man but also to his body after his death. We, as a court of law, respect the emotions and sentiments expressed by the appellant as the father of the deceased. However, the court of law should not decide the rights of the parties considering their sentiments,” the bench mentioned.

On June 3, a division bench of the High Court of Jammu and Kashmir and Ladakh stayed the only bench order for exhuming the physique of Aamir Magrey and handing it to his household for final rites.

On May 27, the only decide bench had directed the Jammu and Kashmir authorities to make preparations for exhuming the stays of the deceased from the Wadder Payeen graveyard within the presence of Latief Magrey.

The excessive court docket, nonetheless, had mentioned if the physique 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 beliefs in the graveyard itself”.

In that scenario, the state shall pay petitioner Mohammad Latief Magrey a compensation of Rs 5 lakh for deprivation of his proper to have the lifeless physique of his son and provides him an honest burial as per the household traditions, non secular obligations, and religion which the deceased professed when he was alive, the only decide bench order had mentioned.

Bodies of two extra civilians, Altaf Ahmad Bhat and Dr. Mudasir Gul, who was killed within the Hyderpora encounter, had been exhumed and returned to the households following an outcry days after the gunfight.

Four folks, together with Magrey, had been killed within the encounter on the outskirts of Srinagar on November 15, 2021.

While police claimed all of them had been terrorists and buried their our bodies in Kupawara in north Kashmir, the households of the deceased insisted they had been harmless civilians.

(Except for the headline, this story has not been edited by NDTV workers and is revealed from a syndicated feed.)



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