"Once Buried, A Body Should Not Be Disturbed" : Supreme Court Suggests Enactment Of Law On Exhumation

The Supreme Court has suggested that the Union Government should consider enacting an appropriate legislation on exhumation.

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 bench comprising Justices Surya Kant and JB Pardiwala observed.

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) and the Second Schedule of the Local Government Act, 1994.

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.

The court made the following observations regarding exhumation.

Reluctance to disturb the dead's earthly repose

Exhumation involves opening up a grave (or occasionally a vault) and removing the human remains already buried there. Also known as 'disinterment', exhumation is controversial – even if the intent is usually to rebury the displaced remains elsewhere. Most societies and cultures that embrace burial as a means of bodily disposal exhibit an entrenched reluctance to disturb the dead's earthly repose mainly for two reasons. The first is public health concerns around the potential transmission of disease from the decaying corpses. Secondly, and more 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.

Exhumation under Section 176(3) CrPC

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 pressing situations. 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.

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. 

Disinterment is not a matter of right

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. A court will not ordinarily order or permit a body to be disinterred unless there is a strong  showing of necessity that disinterment is within the interests of justice. Each case is individually decided, based on its own particular facts and circumstances.

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

Click here to Read/Download Judgment