SC suggests law on exhumation of dead body [Read Order]

NEW DELHI: The Supreme Court on Monday suggested the Union government to bring a law to deal with the issue of exhumation of dead bodies, since there is no such statute in the country in this regard.

A bench of Justices Surya Kant and J B Pardiwala pointed out the lawful authority for exhumation is contained in Section 176(3) of the Criminal Procedure Code and this activity is permitted for the purpose
of crime detection and other such pressing situations, including suspicion of foul play like homicide, criminal abortion, disputed cause of death, poisoning etc, for the purpose of postmortem examination.

The court's suggestion came in its judgement on an appeal by Mohammad Latif Magrey to hand over the body of his son who was killed in the Hyderpora encounter with police in Srinagar in November, 2021.

The court noted the submission by J&K administration that he was a decent burial in accordance with religious beliefs.

Rejecting the plea, the bench said, "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."

The bench also said 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," the bench added.

In its judgement, the bench also pointed out India has no legislation relating to exhumation except Section 176(3) of the CrPC. Very few countries are having a legislation in regard to exhumation. One such legislation available is in Ireland. The Union government may consider enacting an appropriate legislation on exhumation so as to tackle the situations like the one on hand, the bench said.

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