Court orders exhumation: Jammu family didn’t have a say in Valley

The four people were killed in the encounter and buried quickly by the J&K Police in Handwara, 70 km away from Srinagar. The family members of three killed (the fourth was allegedly a militant from Pakistan) contested police claims they were either militants or had militant links.

After days of protests, the administration exhumed the bodies of Altaf Bhat, a businessman, and Mudassir Gul, a dentist — both from the Valley — and returned these to their families for burial. The body of Aamir Magrey, however, remained buried at Handwara.

In his order, Justice Sajeev Kumar held the decision of the J&K Police to deny last rites to the Magrey family as violative of Article 14 of the Constitution of India. “The decision of the respondents not to allow the petitioner to take away the dead body of his son to his native village for last rites was per-se arbitrary and falls foul of Article 14 of the Constitution of India,” he said in the order.

“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 (have) 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,” the court said.

However, noting that the dead body “must be in advance stage of putrefaction,” the order said, “if the body is highly putrefied and is not in 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 Wadder Payeen graveyard itself.”

In that situation, the single judge bench said, the government shall pay Rs 5 lakh to the petitioner as compensation for deprivation of his right to have the body of his son and give him a decent burial as per family traditions, religious obligations, and faith which the deceased professed when he was alive.

The order also said that while the respondents — the Union of India, UT administration through Principal Secretary (Home), DG and IG of the J&K police — tried to draw a distinction by submitting that as per the investigation conducted by the SIT, Magrey was a confirmed terrorist whereas the other two killed, namely, Altaf Ahmad Bhat and Mudasir Gul were only associates of the terrorists; “I do not find any logic or sense in distinction so made by the respondents.”

The order was reserved on May 19 and pronounced Friday. Dismissing the government’s apprehension of law and order getting vitiated as “illusory”, the court directed it to arrange for the exhumation of Amir Magrey’s body from the Wadder Payeen graveyard in the presence of his father.

“The respondents shall also make appropriate arrangements for transportation of the dead body to the village of the petitioner for burial in his native graveyard in accordance with the traditions, religious obligations and religious faith which the deceased professed during his lifetime provided it is in deliverable state,” the order said.

In its first communique after the November 15, 2021, encounter, the J&K Police had claimed that two militants and two associates had been killed in the gunfight. The claims of their association with militant organisations as well as the series of events leading to the death of the civilians were, however, contested by their families. Several political leaders including former chief ministers Omar Abdullah and Mehbooba Mufti had urged the government to return the bodies of the three locals killed in the encounter.