'No Enforceable Constitutional Right' : Supreme Court Dismisses Plea To Bring Mortal Remains Of Sufi Leader From Dhaka To India

The Supreme Court on Friday (April 5) dismissed a petition seeking to bring the mortal remains of Sufi leader Hazrat Shah from Dhaka, Bangladesh to India for burial at the Hazrat Mulla Syed Dargah at Prayagraj, Uttar Pradesh.

Noting that Hazrat Shah was a Pakistani citizen, who died in Dhaka in January 2022, the Court stated that there was no enforceable constitutional right involved to invoke Article 32 of the Constitution. The writ petition was filed by Hazrat Mulla Syed Dargah. Late Hazrat Shah was the Sajjada-nasheen of the said Dargah from 2008 till his death.

The bench comprising Chief Justice of India DY Chandrachud, Justices JB Pardiwala and Manoj Misra noted that Hazrat Shah was born and brought up in Prayagraj (erstwhile Allahabad), Uttar Pradesh, India, and in the year 1992 migrated to Pakistan and was conferred Pakistani citizenship. Being a citizen of another country, the bench observed that there were legal difficulties in allowing such a relief.

"There are difficulties in entertaining such a petition. Hazrat Shah was admittedly a Pakistani citizen. There is no enforceable constitutional right which the petitioner can invoke for the transporting of his mortal remains from Dhaka, where he has been buried. Apart from this the difficulties in issue related to exhumation, as a matter of first principle, it would not be appropriate for this court to direct the transportation of the mortal remains of a citizen of a foreign state for  burial to India." 

The petitioner sought a writ of mandamus directing the Union to facilitate the process of transportation of the mortal remains of Hazrat from Dhaka, Bangladesh to Prayagraj, India, in accordance with his last and final will.

Advocate Arundhati Katju, appearing on behalf of the petitioners, clarified to the bench that since 2008, Hazrat Shah, was in India after he was selected as the Sajjada-nasheen of the Hazrat Dargah and it was his wish to be buried there. However, he passed away in 2022 during a trip to Dhaka and had to be buried there.

"I have written to them(Government) repeatedly and there has been no reply since two years," she submitted.

In response, CJI asked : "How can anybody who is not a citizen of India , his family, friends or followers say that we want him to be buried here?" 

Katju stressed that the grave of Hazrat Shah in Dhaka is not being tended to properly and that being the Sajjada-nasheen of the Dargarh, he has a customary right to be buried within the Dargarh premises. She further submitted that the Aircraft Public Health Rules 1954 do not make a distinction between citizens and non-citizens.  

The CJI, acknowledging the religious sentiments attached, said, " We understand the sentiment but there has to be an enforceable constitutional right." 

In 2008, he was elected as the Sajjada-nasheen of the shrine 'Dargah Hazrat Mulla Syed Mohammad Shah (Rouza/Mazar)', situated in Prayagraj, U.P., India, following which he continued to discharge his duties.  

Hazrat died in 2022 in his visit to Dhaka, Bangladesh , wherein his burial was conducted. It is the grievance of the petitioner that despite several representations made to the Ministry of External Affairs, no efforts have been made so far to bring back the remains of the sufi leader. As per the Will executed by the Sufi leader in 2021, he had expressed his desire to be buried at the Dargah in Prayagraj, U.P.  

Case Details : DARGAH HAZRAT MULLA SYED vs. UNION OF INDIA Diary No.- 1449 - 2024 

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