2021 Hyderpora encounter killing SC reserves order on plea to exhume body for rites

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The Supreme Court on Monday reserved its order on a plea to exhume the body of a man, Amir Magray, killed in an encounter with security personnel at Kashmir’s Hyderpora in November 2021, with the Jammu and Kashmir administration opposing it, asserting that the deceased was a terrorist and exhuming the body now will lead to law-and-order problems.

Advocate Ardhendumouli Prasad appearing for the J&K administration told the bench of Justices Surya Kant and J B Pardiwala that “as far as the state is concerned, he was a terrorist”. He also pointed out that the bodies of such persons are purposely not buried in their native villages taking into account that it is used for glorification of the terrorists, adding, “young minds are swayed..the terrorists sneak in and they say very good things and the young minds are drawn into terrorism. That is the reason why the state consciously does not bury them in the same town or in the same village”.

On the plea to exhume the remains, he said “today eight months have passed and exhuming now will only lead to law-and-order problems”.

Appearing for Amir’s father Mohammad Latief Magray, Senior Advocate Anand Grover said there is no threat to security by allowing his plea. “I just want the body exhumed so that rites can be performed. Only I have the right to perform the rites and no one else. These are religious rites,” he said.

He referred to religious scriptures to explain the rituals and added “this religious rite cannot be usurped by the state…It is a fundamental right under Article 21 for me”.

Grover said the family had given up the need for community participation in the rites as it may have led to security concerns, adding “what prejudice will be caused if the body is exhumed?…the sentiments of religious people ought to be respected”.

The family of Amir has maintained that he was not a terrorist. Touching on this, Grover said, unfortunately, if one is labelled a terrorist, the family is also targeted. Grover said he can show that Amir was not a terrorist but is not getting into that and only seeking the body for last rites.

The Jammu and Kashmir and Ladakh High Court had earlier allowed the family to perform rites at the burial site but the family insisted that the body be handed over to it.

Prasad pointed out that a video submitted to the HC showed that all Islamic rites were performed and that there was no quarrel on this.

The counsel also said, “We all saw what happened when the body was given a few years back”. The reference was apparently to the burial of terrorist Burhan Wani. Prasad said that many terrorists are killed in encounters and buried, and if the petition is entertained, the HC will be flooded with similar petitions. There is also the question of decomposition of the body, he added.

The HC had also directed the state to pay Rs 5 lakh to the family to compensate for the deprivation of their rights.

The apex court, after hearing the parties, said it will pass orders.