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8. The writ petition is resisted by the respondents. It is submitted by the respondents that the demand of return of the dead body in the instant case is not a demand for a dead body of an ordinary citizen killed in an action of security forces but it is a dead body of a terrorist, who has been killed during encounter. If, for any reason, the return of dead body of terrorist like the son of the petitioner, is considered, not only it will send wrong message in the society but it would also lead to greater law and order and security concerns. It is thus submitted that the SIT, which conducted the investigation in the instant case, has firmly established the role of late Amir Latief Magrey in the terrorist related activities and conspiracies. Thus in terms of previous practice and procedure and also to avoid adverse effect upon law and order situation, the respondents shifted the dead body of the son of the petitioner and three others and buried at Wadder Payeen graveyard with all religious obligations performed by Auqaf Committee in the presence of Executive Magistrate Zechaldara. It is thus urged by the respondents that though they do not deny that right to life with human dignity extends even beyond death, yet such right does not come without restrictions. It is thus contended that right of the petitioner to have the dead body of his son to accord decent burial at his native graveyard must yield to larger public interest and the public interest demands that the dead body of the deceased son of the petitioner, which has been laid to rest at Wadder payeen Graveyard, is not exhumed and handed over to the petitioner at this stage, for doing so may incite violence and create law and order problem. The respondents have shared certain documents with this Court in a sealed cover, perusal whereof indicates that all the four dead bodies of the persons killed in the encounter were buried on 15.11.2021 at Wadder Payeen graveyard with all religious obligations performed through Auqaf Committee of the area in presence of the Executive Magistrate Zechaldara. It further comes out from the documents submitted in a sealed cover that the bodies of two, namely, Mohd Altaf Bhat and Dr. Mudasir Gul were exhumed after two days on the directions of District Magistrate Kupwara and handed over to their next of kin for performing burial and last rites in their own way.

11. The issue has been dealt with by the Madras High Court in S. Sethu Raja v. The Chief Secretary, Government of Tamil Nadu and ors, WP (MD) No. 3888/2007 decided on 28.08.2007. Relying upon the judgments of Hon‟ble the Supreme Court and having regard to the right to life and liberty enshrined in Article 21 of the Constitution of India, the Bench of Madras High Court in paragraph nos. 18 and 19 of the judgment held thus:-

18.The fundamental right to life and personal liberty guaranteed under Article 21 of the Constitution has been given an expanded meaning by Judicial pronouncements. The right to life has been held to include the right to live with human dignity. By our tradition and culture, the same human dignity (if not more), with which a living human being is expected to be treated, should also be extended to a person who is dead. The right to accord a decent burial or cremation to the dead body of a person, should be taken to be part of the right to such human dignity. As a matter of fact, the Supreme Court held in Ram Sharan Autyanuprasi Vs. Union of India (AIR 1989 Supreme Court 549) that the right to life enshrined in Article 21 of the Constitution would include all that gives meaning to a man‟s life namely, his tradition, culture, heritage and protection of that heritage in its full measure. The relevant portion of the judgment of the Supreme Court in para 13 of the said judgment reads as follows:

(iii) That the right guaranteed by Article 21 of the Constitution is subject to deprivation in accordance with procedure established by law. And, as held by Apex Court in Maneka Gandhi v. Union of India ( 1978) 1 SCC 248, such procedure must be „right, just and fair‟ and not „arbitrary, fanciful and oppressive‟.

15. 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.

16. 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. 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. 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.