The struggle of Abdul Lateef Magray- the father of Amir Magray began on November 15 and has finally bore results after more than six months when the High Court on Thursday ordered the exhumation of his body and asked the administration to ensure that Amir’s body reached his home in Gool area of Ramban district in Jammu Kashmir.
On November 15, Amir Ahmed Magray was shot dead in Hyderpora by the Government Forces along with three others. The Government Forces claimed Amir was a militant, a claim contested by his family. “We have rested our case in the court of Allah, but all we seek is his dead body,” Amir’s father had told The Kashmiriyat, a few days after the incident.
In June 2005, a gunman barged inside Lateef Magray’s house at Thatharka in Ramban’s Gool area and shot his cousin dead. The gunman also shot at Magray, who retaliated and hit the gunman on his head with a huge rock. The gunman named Yasir Bhat of Lashkar-e-Taiba died there, on the spot, Magray recalls.
After the incident, Magray was awarded by the Indian Army. Magray recalls post that incident, he worked as an informer for the Indian Army for the next six years.
In 2011, the then Governor N.N. Vohra awarded Magray a gold medal for his work in combating militancy.
ALSO READ: Alienation grows in Kashmir as bodies of the dead aren’t returned to families
Ten years later, Magray’s videos appeared on Social media where he was seen requesting the authorities to return his son’s dead body. “How can they label my son of all people as a militant? He was only a servant who worked with a family for the last seven months,” Magray said.
Around 1829 HRS on Monday, the Jammu Kashmir Police through its official Twitter handle announced that an encounter raged in the Bemina locality of Srinagar. Six minutes after the tweet, Jammu Kashmir Police announced, “#SrinagarEncounterUpdate: 01 unidentified (#militant) killed. #Operation going on. Further details shall follow.”
Around 2025 HRS, through one more tweet, the Jammu Kashmir Police said one more militant had been killed during the encounter, taking the toll to two.
Around 10 PM, the Police announced that Altaf, the house owner had been killed during the encounter. They tweeted, “#SrinagarEncounterUpdate: The house owner who was injured in (militant) fire, succumbed to his injuries. (#Militants) have been hiding on top floor of his building. As per source and digital evidence, he has been working as (#militant) associate. Search is still going on: IGP Kashmir.”
Later that night the family of Altaf denouncing the claims of Police hit the streets. Sloganeering, while also wailing, they demanded that they be given right to bury Altaf and have a proper funeral for him. As the protest was going on, some of his family members reached the Police Control Room in Srinagar where they were informed, “the bodies have been dispatched to Kupwara.”
“I have no expectations now. I fought for nothing all my life. All I want is my son’s body. I am saying this because I know he wasn’t a militant. Prove me wrong and I won’t ask for the body,” Lateef Magray had told The Kashmiriyat.
He knocked at all the doors, from magistrates to Police officials, however, he did not get back his son’s dead body. In December, Mohammed Lateef Magray filed a petition in the Jammu Kashmir High Court seeking the return of the body of his son, maintaining his “innocence” just two days after the Special Investigation Team (SIT) of the Jammu Kashmir Police probing the Hyderpora encounter claimed that while one civilian was killed by a foreign Militant, two others, including a local “militant” (Magray), died in the crossfire after being used as a human shield by the hiding militant.
What did the court say
The 18-page petition was filed by Amir’s father through his lawyers Deepika Singh Rajawat and Mohammed Arshad Chowdhary.
The High Court in its order stated that the right of the next of kin of the deceased to have their dear one cremated or buried as per the religious obligations and religious belief that the dead person professed during his life time, is part and parcel of right to life guaranteed under Article 21 of the Constitution of India.
“The parents and close relations of the deceased are well within their right to demand the dead body of their dear one to be cremated or buried as per their traditions, religious obligations and religious belief. This right would also include the choice of the relatives to have the dead body cremated or buried at his native place. It is not uncommon that the graves of the dead are maintained by their relatives and are visited by their relations and close friends to pay respect and homage on certain occasions,” the order accessed by The Kashmiriyat read.
The order taking in view the return of the dead bodies to the other two victims of the encounter, who were from the Kashmir valley said, “The action of the respondents (administration) is not traceable to any procedure established by law which is just, fair and equitable. At least none was brought to the notice of this Court. The decision of the respondents not to allow the petitioner to take away 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.”
The court also stated that the “apprehension” of law and order getting vitiated at this point of time also appears to be “illusory”.
When the respondents could maintain the law and order situation when the dead bodies of two, namely, Altaf Ahmad Bhat and Dr. Mudasir Gul were exhumed and handed over to their relatives for last rites on 18.11.2021, it is not difficult for the respondents to make necessary arrangements for exhumation of the dead body of Amir Latief Magrey, the son of the petitioner and transport the same in proper escort to Village Thatharka Seripora Tehsil Gool District Ramban, the High court stated while ordering the administration to exhume the body.
“Without dilating much on the issue, it can be said to be well settled that right to life and liberty guaranteed to a citizen by Article 21 of the Constitution of India includes right of the citizen to live with human dignity and this right to live with human dignity even extends after death though in a limited extent,” the court said in its 13 page order.
Viewed thus, the right of the petitioner to claim the dead body of his son for performing last rites in his own way and in accordance with local traditions, religious obligations and religious faith, which the deceased professed during his life time, cannot be disputed, the High court order read.
“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 State shall pay to the petitioner a compensation of Rs. 5 lakhs for deprivation of his right to have the dead body of his son and give him decent burial as per family traditions, religious obligations and faith which the deceased professed when he was alive,” the order stated.
“But the question that needs to be addressed in the context of present controversy is whether the State can deny this right in the name of preventing law and order situation going out of hand,” the court order read.