It was 9:15 pm in the evening on Monday when Mohammad Latief Magrey reached his home at Gool Gulabgarh in the Ramban district of Jammu. Travelling 260 km back and forth between Ramban and Srinagar has now become a frequent exercise for Magrey, whose son, Amir, was killed last year during a controversial gunfight in Hyderpora, Srinagar.
Four persons died in the gunbattle, which triggered massive protests in Kashmir. The families of the three slain individuals denied the police claim that their kin were militants or militant associates.
The police had initially buried all the four men, including a Pakistani militant, at a distant burial site in Handwara in north Kashmir. But the eruption of furious protests drew widespread media attention, forcing the government to agree to exhume the bodies of Altaf Ahmad, the owner of the building where the encounter took place, and his tenant Dr Mudasir Gull, who ran a real estate business inside the building.
Discreet Burials Since April 2020
However, police refused to hand over the body of Amir Magrey, the third deceased person whose identity as a militant associate it claimed was beyond doubt. Magrey ran errands at the building and was employed by Dr Gull.
Challenging the police’s refusal to exhume his body, Latief Magrey, Amir’s father, an anti-militancy crusader from Ramban, a hilly area of Jammu abutting Kashmir valley, knocked at the doors of the High Court in December last year.
Since April 2020, the Jammu & Kashmir administration has been conducting discreet burials of militants killed during gunfights.
The policy came as a consequence of police reports claiming that funerals held for the dead militants attracted a large crowd in Kashmir and that these gatherings eventually became catalysts for further recruitment into militancy.
'Thankful for This Miracle'
Last week, however, the Jammu and Kashmir High Court concluded its hearings on Magrey's litigation and issued a stern judgment, directing the police to exhume the body of Amir, too.
Citing Article 21 of the Indian constitution, the judgment, issued by a Bench headed by Justice Sanjeev Kumar, said, “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 lifetime, is part and parcel of the right to life.”
It further said, “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.”
On Monday, Magrey spent the whole day in Srinagar and busied himself with officials at the District Police Headquarters in Srinagar. He spoke to this reporter over the phone from Jammu as he was travelling back. “We submitted the Hon’ble High Court’s order directing police to exhume the body of my son,” he said. “I am thankful to the almighty first and then to our lawyers who got this miracle done.”
Family members of Altaf Bhat had claimed that police had escorted him into the building to help locate suspected militants, about whose presence the police had received a tip-off. They had allegedly done so twice, and on the third time, when they also took Gull and Amir along, there was gunfire.
The killings led to demonstrations in Srinagar and reignited political action in Kashmir, where a crackdown following the abrogation of Article 370 in August 2019 had all but silenced the political opposition.
How the Police Resisted Public Pressure
The Special Investigation Team (SIT) that the Jammu & Kashmir police constituted to probe the deaths literally ended up giving the security forces a clean chit on the matter. The report claimed that it was Pakistani militant Bilal Bhai who killed Dr Gul and Bhat, while Magrey died in “crossfire”.
The SIT findings triggered a political storm, with all major political parties viewing the police inferences with suspicion and casting doubts over its credibility.
Reacting to the widespread public rejection of its claims, the Jammu & Kashmir police threatened critics with legal action. “The SIT came across several posts in the media from some political leaders and family members wherein they have cast doubts on the evidence obtained by the SIT so far,” police said in a media release. “These people have tried to call it ‘Concocted Cover-up Story’, ‘Ornamental Probe', ‘Clean Chit to Killers’, ‘Fairy Tale of Police’, etc. Such speculative statements from the political leaders have a tendency to create provocation, rumour, fear and alarm among the general masses or particular section of society. This kind of approach is against the rule of law and may attract appropriate penal provisions as envisaged under law,” it said.
This posturing sparked further condemnation from across the board, with the Indian Express newspaper delivering a stinging rebuke and demanding that the Jammu & Kashmir Police be “disabused of the notion that it is above the law”.
Since the new burial policy came into effect, it’s common to see parents of slain militants leading protests demanding the return of their bodies.
In the case of 16-year-old Ather Mushtaq Wani, who died under similar circumstances in December 2020, police filed a case under the Unlawful Activities (Prevention) Act (UAPA) against his father, who had been galvanising support from wider civil society and the common public in Shopian in order to bring pressure upon the police to exhume Ather’s body.
But the police have mostly succeeded in resisting these pressures and tenaciously upheld their burial policy. It is possible that the police were aware that its decision to return the bodies of Altaf and Gull could have been perceived as a chink in its armour.
'Find No Logic or Sense': HC About Police Decision
But now, the High Court’s decision is likely to call into question the durability of this policy, especially if more families decide to approach the court to demand the return of the bodies of their slain kin, citing parts of the 27 May judgment.
The judgment held that the right to decent burial to the dead body “as per the religious obligations and religious belief that the deceased professed during his lifetime, is concomitant of right to live with dignity, which right, as is held by Supreme Court in the case of Ramsharan Autyanuprasi & ANR vs Union Of India & Ors, AIR 1989 SC 459, extends to person after his death in the limited sense of treating the dead body with dignity and respect”.
The Court has also questioned that if the dead bodies of Dr Gull and Altaf Bhat were returned to their families, then why a similar concession wasn’t extended to Amir’s family. “The respondents [Indian government and others] have tried to draw distinction by submitting that as per the investigation conducted by the SIT, the deceased son of the petitioner was a confirmed terrorist whereas the other two killed, namely, Altaf Ahmad Bhat and Dr Mudasir Gul, were only associates of the terrorists,” the judgement said.
“I do not find any logic or sense in the distinction so made by the respondents. It transpires that due to public pressure and demand by the relatives of the two deceased namely, Altaf Ahmad Bhat and Dr Mudasir Gul, the respondents relented and permitted their dead bodies to be exhumed and handed over to their relatives. Since the petitioner was a resident of Gool, a remote village in Jammu Province and did not [have] much say in the Valley and, therefore, his request was arbitrarily turned down. The action of the respondents is not traceable to any procedure established by law which is just, fair and equitable.”J&K High Court
Police's Concerns 'Illusory'
The judgment termed the police’s concerns that returning the bodies will disturb law and order as “illusory”.
“When the respondents could maintain the law and order situation when the dead bodies of [Altaf and Dr Gull] were exhumed and handed over to their relatives for last rites, it is not difficult for the respondents to make necessary arrangements for the exhumation of the dead body of Amir Latief Magrey,” it read.
The court also directed the government to pay Latief Magrey Rs 5 lakh in case Amir’s body was found “highly putrefied and is not in a deliverable state”.
But Magrey, while speaking to this reporter, said he didn’t care for compensation. “I lost my son,” he said. “It is like losing a limb in this old age. No compensation will recompense for the void his death has left in our family. I want his body back. No matter what.”
(Shakir Mir is an independent journalist. He has also written for The Wire.in, Article 14, Caravan, Firstpost, The Times of India and more. He tweets at @shakirmir.)