Constitution of India – Arts. 14, 21, 25, 26 and 136 – Code of Criminal Procedure, 1973 – s.176(3) – Exhumation of the dead body – There was an encounter between militants and Police – Four militants were shot including the son of appellant – FIR was registered – During the investigation four bullet ridden unidentified dead bodies were recovered from the site of the encounter – Bodies of two out of four persons were later exhumed and handed over to their relatives for performing their last rites – The bodies of the other two persons (Son of appellant and one other) were buried through Auqaf Committee and were not disinterred and handed over to their families – The appellant approached the High Court – Single judge of the High Court directed the respondents to make necessary arrangement for the disinterment of the body/remains of the deceased – The respondent filed LPA and challenged the order passed by the Single judge – The High Court permitted the appellant and his family member to perform religious rituals/prayers of the deceased but declined to grant permission to disinter the body of the deceased for the purpose of religious rites – The appellant approached the Supreme Court and submitted that that appellant has a fundamental right U/Art. 21 to perform last rites of his dead son in accordance with the rituals – Held: The body was buried with dignity – 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 law does not favour disinterment as sanctity of grave should be maintained – Court will permit disinterment only if it is within the interests of justice – The right to have a dignified life U/Art. 21 is not only available to living person but also to dead – Almost 9 months have passed post burial which suggest that body may not be in a deliverable state.
Constitution of India – Article 136 – Scope and power of Supreme Court – Only when exceptional and special circumstances exist; that substantial and grave injustice has been done and the case and question presents features of sufficient gravity than only Court would exercise powers under Article 136 – To be exercised sparingly and in exceptional cases only.
Dismissing the appeal, the Court
HELD:1. Even the Single judge by order dated 27.05.2022, had mentioned that the dead body of the deceased must be in advanced stage of putrefaction. Almost 9 months have passed post burial which is suggestive that the body may not be in a deliverable state. It will be too much at this stage to disinter the body. The dead should not be disturbed and some sanctity should be attached to the grave. [Para 53][270-A-B]
2. It goes without saying that the right to live a dignified life as enshrined under Article 21 of the Constitution is not only available to a living person but also to the “dead”. Even a dead person has the right of treatment to his body with respect and dignity which he would have deserved had he been alive, subject to his tradition, culture and religion which he professed. These rights are not only for the deceased but, his family members also have a right to perform the last rites in accordance with the religious traditions. [Para 54][270-B-C]
3. 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. [Para 56][270-H; 271-A-B]
4. The respondents have stated on oath that the body of the deceased was buried with all honour. The body was first washed and thereafter wrapped in a fresh white cloth. The prayers were also performed at the time of the burial. There is nothing to indicate that the deceased was not given a decent burial as enshrined under 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. [Para 57][271-C-D]
Pettigrew v. Pettigrew 56 A. 878 (Pa. 1904); Union Territory of J & K and Others v. Mohammad Latief Magrey and Another 2022 SCC OnLine J&K 516; Mohammad Latief Magrey v. Union of India and Others, 2022 SCC OnLine J&K 433; Pt. Parmanand Katara, Advocate v. Union of India (1995) 3 SCC 248 S. Sethu Raja v. The Chief Secretary, The Chief Secretary, Government of Tamil Nadu and Ors., WP(MD) No.3888 of 2007 decided on 28.08.2007, Ramlila Maidan Incident In Re, (2012) 5 SCC 1 : [2012] 4 SCR 971; Jakir Sk. v. The State of West Bengal & Ors., (2017) SCC OnLine Cal 3354; Vineet Ruia v. Principal Secretary, Ministry of Health and Family Welfare, Government of West Bengal, AIR 2020 Cal 308; Ram Sharan Autyanuprasi v. Union of India AIR 1989 SC
549 : [1988] 3 Suppl. SCR 870; Ashray Adhikar Abhiyan v. Union of India (2002) 2 SCC 27 : 2002 (1) JT 41; Pradeep Gandhy v. State of Maharashtra, 2020 SCC OnLine Bom 662.; Mohd. Hamid and Another v. Badi Masjid Trust and Others (2011) 13 SCC 61 : [2011] 9 SCR 348; Gulam Abbas and Others v. State of U.P. and Others (1984) 1 SCC 81 : [1984] 1 SCR 64; Adi Saiva Sivachariyargal Nala Sangam and Others v. Government of Tamil Nadu and Another (2016) 2 SCC
725 : [2015] 11 SCR 1110; Anandhi Simon v. State of Tamil Nadu, Represented by Chief Secretary to Government and Others (2021) 3 Mad LJ 479; Vikash Chandra @ Guddu Baba v. The Union of India & Ors. 2008 SCC OnLine Pat 905 : (2008) 2 PLJR 127; Ramji Singh @ Mujeeb Bhai v. State of U.P. & Ors. (2009) 5 All LJ 376; Kunhayammed v. State of Kerala (2000)
6 SCC 359 : [2000] 1 Suppl. SCR 538; Khoday Distilleries Ltd. v. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd. (2019) 4 SCC 376 : [2019] 3 SCR 411; Pritam Singh v. State AIR 1950 SC 169 : [1950] SCR 453, Hem Raj, Son of Devilal Mahajan of Bijainagar, Condemned Prisoner, at Present Confined in the Central Jail; Ajmer v. State of Ajmer AIR 1954 SC 462 : [1954] SCR 1133; P.S.R.
Sadhanantham v. Arunachalam and Another (1980) 3 SCC 141 : [1980] 2 SCR 873 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.