The Supreme Court on Monday asked the Centre to consider enacting an appropriate law on exhumation while observing that the right to live a dignified life is not only available to a living person but also to the dead.
Noting that very few countries have legislations on exhumation, a bench of Justice Surya Kant and J B Pardiwala said India had no separate law other than Section 176(3) (authority for exhumation) of the CrPC.
Whenever there is a suspicion of foul play like homicide, criminal abortion, disputed cause of death, poisoning etc. exhumation may be carried out for the purpose of postmortem examination.
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“We take notice of the fact that India has no legislation relating to exhumation except Section 176(3) of the CrPC. One such legislation available is in Ireland under Section 46 of the Local Government (Sanitary Services) Act, 1948 as amended by Section 4 (2) and the Second Schedule of the Local Government Act, 1994.
“The Union of India may consider enacting an appropriate legislation on exhumation so as to tackle the situations like the one on hand,” the bench said.
The court’s suggestion came while dismissing the plea of a man in Kashmir seeking to exhume the body of his son, who was dubbed a terrorist and killed in an encounter in November 2021 and to permit the family to conduct his last rites at the same graveyard.
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Observing that the exercise of fundamental rights is not absolute but must give way to the maintenance of public order, morality and health, the top court said 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 apex court’s judgement came on a plea filed by Mohammad Latief Magrey seeking the exhumation of the body of his son Aamir Magrey.
Dismissing the plea of the father, Latief Magrey, a bench of Justices Surya Kant and JB Pardiwala said: "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".
The bench further observed, "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," the judges said asking the Centre to consider laws on the exhumation of bodies.
(with PTI inputs)
