In a significant judgement, the Jammu and Kashmir High Court on Friday directed the government to exhume the body of a youth named Amir Latief Magrey killed in a security forces' operation last year in Hyderpora locality of Srinagar.
The Court saw no merit in the police plea that handing over the body could pose a law and order problem.
Magrey's father Muhammad Latief in his petition had said the police have "very conveniently put the tag of terrorist on his son and have denied even decent burial to the dead body".
The Court ordered the exhumation of the body, saying, "I am inclined to allow this petition of the father of the deceased Amir Latief Magrey and direct the respondents to make arrangements for the exhumation of the body, remains of the deceased."
The Court directed the government to make appropriate arrangements for transportation of the body to the village of the petitioner for according burial in his native graveyard in accordance with the traditions, religious obligations, and religious faith which the deceased professed.
Justice Sanjeev Kumar said in his 13-page order, "Since the dead body of the deceased must be in an advanced stage of putrefaction, as such, it would be desirable that the respondents act with promptitude and do not waste any further time.
"However, if the body is highly putrefied and is not in a 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 graveyard itself.
"In that situation, the state shall pay to the petitioner a compensation of Rs 5 lakh for deprivation of his right to have the dead body of his son and give him decent burial as per family traditions, religious obligations, and faith which the deceased professed when he was alive."
On November 15, 2021, Magray along with a Pakistani militant Bilal Bhai alias Hyder, Altaf Ahmad Bhat, and Dr Mudasir Gull were killed in a security forces’ operation at Hyderpora locality in Srinagar, according to the police. Their bodies were buried in Wadder Payeen in north Kashmir’s sub-district Handwara, nearly 100 km away from Srinagar.
The killings evoked protests from families of Bhat and Dr Mudasir Gul — both hailing from Srinagar, following which Jammu and Kashmir Lieutenant Governor ordered a probe into the matter on October 18, 2021. On the same day, the bodies of Bhar and Dr Gul were exhumed and handed over to their families. The families of Bhat and Gul described the encounter "staged encounter" and said both Bhat and Dr Gul were civilians.
Magray’s father Muhammad Latief also sought the body of his son but it was denied, forcing him to file a petition in the Court to seek his son’s body. The police through Additional Advocate General Asifa Padroo opposed the petition, saying the family is demanding the return of a "terrorist body" and not of "an ordinary citizen".
Since April 2020, the police have not handed over bodies of militants and civilians killed in anti-militancy operations in Kashmir to their families. Bodies are instead buried in remote graveyards in border areas. Security forces have been saying the decision to deny bodies of militants to their families has helped in curbing the militancy.
In the petition, Muhammad Latief said he was totally unconvinced with the respondents claim that his son Amir was a militant and was killed in an encounter and, therefore, approached the authorities for intervention.
Muhammad Latief’s entire family has all along remained associated with the Indian Army and other security agencies and was instrumental in the killings of militants in his area. He was even issued a certificate of commendation by the Army's General Officer Commanding In Chief on January 23, 2006. A state award for bravery for the year 2012 was conferred by the state government upon Latief for having shown exemplary courage of killing a militant who had attacked and shot dead one civilian.
The Court said, "From the reply of the respondents as also from the documents submitted in sealed cover, it is not coming forth as to why the request of the petitioner for return of the body of his son Amir Latief Magrey was not conceded and his body exhumed along with Mohd Altaf Bhat and Dr Mudasir Gul.
"I do not find any logic or sense in distinction so made by the respondents. It transpires that due to public pressure and demand by the relatives of the two deceased namely, Altaf Ahmad Bhat and Dr. Mudasir Gul, the respondents relented and permitted their dead bodies to be exhumed and handed over to their relatives. Since the petitioner was a resident of Gool, a remote village in Jammu Province and did not much say in the Valley and, therefore, his request was arbitrarily turned down.
"The action of the respondents is not traceable to any procedure established by law which is just, fair and equitable. At least none was brought to the notice of this Court.
The Court added that the decision to not allow the family to have the body of their son for last rites was arbitrary and fell foul of Article 14 of the Constitution of India.
The Court further said, "The apprehension of law and order getting vitiated at this point of time also appears to be illusory. When the respondents could maintain the law and order situation when the dead bodies of two, namely, Altaf Ahmad Bhat and Dr. Mudasir Gul were exhumed and handed over to their relatives for last rites on 18.11.2021, it is not difficult for the respondents to make necessary arrangements for the exhumation of the dead body of Amir Latief Magrey, the son of the petitioner and transport the same in proper escort to Village Thatharka Seripora Tehsil Gool District Ramban."