Religious rights of every person subject to public order, says SC

New Delhi: Religious rights of every person are subject to "public order", the Supreme Court said on Monday while dismissing the plea of a man seeking to exhume the body of his son, who was dubbed a terrorist and killed in an encounter in Kashmir in November 2021, so the family could conduct his last rites in the same graveyard.

Observing that the exercise of fundamental rights is not absolute but must give way to the maintenance of public order, morality and health, the top court said 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". "Religious rights of every person and every religion are, however, subject to the public order, the maintenance whereof is paramount in the larger interest of the society. Both these fundamental rights have been expressly made 'subject to public order, morality and health'. "The exercise of these fundamental rights is not absolute but must yield or give way to the maintenance of public order, morality and health," a bench of Justice Surya Kant and J B Pardiwala said.

The apex court's judgement came on a plea filed by Mohammad Latief Magrey seeking exhumation of the body of his son Aamir Magrey.

Refusing to disinter the body of the deceased for the purpose of religious rituals, the top court said almost nine months have passed post burial which is suggestive that the body may not be in a deliverable state.

"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.....

"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.

We are of the view that it would have been appropriate and in the 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," the bench said.