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The Supreme Court has suggested that the Union Government should consider enacting
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..His family members also
have a right to perform the last rites in accordance with the religious traditions., the
While dismissing a plea of Mohammed Latif Magrey seeking hand over of the body of his
son who was killed by security forces in the Hyderpora encounter in Jammu and Kashmir,
the bench noticed that India has no legislation relating to exhumation except Section
176(3) of the CrPC. The court observed very few countries are having a legislation in
regard to exhumation. The bench cited the example of a legislation in Ireland i.e. Section
46 of the Local Government (Sanitary Services) Act, 1948 as amended by Section 4 (2)
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25/09/2022, 16:38 'Once Buried, A Body Should Not Be Disturbed' : Supreme Court Suggests Enactment Of Law On Exhumation
Though it dismissed the petition, the bench opined that it would have been appropriate
and in fitness of things to hand over the dead body of the deceased to the family
members, more particularly, when a fervent request was made for the same.
"It is of course true that 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 sensitive matters
involving security of nation and as far as possible the court should not interfere unless
substantial & grave injustice has been done. 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. We are convinced of one thing that the body was buried with dignity. There is
nothing on record to indicate that the dead body was dealt with in any manner insulting
or hurting the religious feelings of the family members.", the court observed.
Exhumation involves opening up a grave (or occasionally a vault) and removing the
mainly for two reasons. The first is public health concerns around the potential
fundamentally, exhumation offends the basic moral premise of allowing the dead to
'rest in peace' and is generally regarded as a forbidden or sacrilegious act.
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25/09/2022, 16:38 'Once Buried, A Body Should Not Be Disturbed' : Supreme Court Suggests Enactment Of Law On Exhumation
The lawful authority for exhumation is contained in Section 176(3), CrPC, 1973.
This activity is permitted for the purpose of crime detection and other such
Even a dead person has the right of treatment to his body with respect and dignity
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.
After a body has been buried, it is considered to be in the custody of the law;
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
https://www.livelaw.in/top-stories/supreme-court-consider-legislation-exhumation-dead-body-209049 4/13
25/09/2022, 16:38 'Once Buried, A Body Should Not Be Disturbed' : Supreme Court Suggests Enactment Of Law On Exhumation
Case details
Mohammed Latif Magrey vs Union Territory Of Jammu and Kashmir | 2022 LiveLaw
(SC) 756 | CA 6544 OF 2022 | 12 September 2022 | Justices Surya Kant and JB
Pardiwala
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