Delhi HC refuses to entertain PIL to remove graves of Afzal Guru, Maqbool Bhatt from Tihar Jail premises

New Delhi: The Delhi High Court on Wednesday refused to entertain a plea seeking directions for removing the graves of terrorists Mohammad Afzal Guru and Mohammad Maqbool Bhatt from Tihar Jail premises here to "prevent glorification".

The two terrorists were sentenced to death and executed in Tihar Jail.

"No law or rule prohibits cremation or burial inside the jail premises,"a bench of Chief Justice Devendra Kumar Upadhyaya and Justice Tushar Rao Gedela said and ordered that the PIL is “dismissed as withdrawn”.

Sensing the high court’s indication, the petitioners’ counsel had urged the court to allow him to withdraw the petition and re-file it with certain data.

“For approaching the court for a relief in a PIL, you have to show us any violation of constitutional rights, fundamental rights or statutory rights. No law or rule prohibits cremation or burial inside the jail premises,” the bench said.

The court said it cannot entertain the petition to remove the graves as it was a decision taken by the government keeping in mind the law and order situation.

The PIL also sought directions to the authorities concerned to relocate the mortal remains, if necessary, to a secret location to prevent “glorification of terrorism” and misuse of jail premises.

The court agreed with the submission of petitioners' counsel that graves cannot become a pilgrimage or a site for glorification but made it clear that there has to be some data on record to show that the site was being glorified.

As the counsel said it was available in the public domain and there were media reports on the issue, the bench said a PIL cannot be based on newspaper reports.

The plea filed by Vishwa Vedic Sanatan Sangh and one Jitendra Singh claimed the construction and continued existence of these graves inside a state-controlled prison was “illegal, unconstitutional, and against public interest”.

Advocate Varun Kumar Sinha, representing the petitioners, claimed that the presence of these graves has turned the central jail, Tihar, into a site of “radical pilgrimage” where extremist elements gather to venerate convicted terrorists.

“This not only undermines national security and public order, but also sanctifies terrorism in direct contravention of the principles of secularism and rule of law under the Constitution of India,” he argued.

To this, the bench asked for the data on the basis of which it can be said that people are going inside to pay homage at the graves of Guru and Bhatt.

On the submission that prison rules require that graves have to be transported outside, the court said it does not say that each and every body has to be necessarily taken out of prison premises.

"The emphasis is that if the body has to be taken out, it has to be done with all solemnity, just to pay respect to the dead. No law or rule prohibits cremation or burial inside the jail premises," the bench said.

On the argument that the existence of the two graves is causing nuisance for other inmates in jail, the bench questioned how it could be a nuisance and whether any complaint has been received from any inmate in this regard. It said that "prima facie graves do not cause nuisance".

"There are reports that to pay homage to them, people from that community are committing crimes and going inside. This is in public domain and this is creating a nuisance for the inmates of the jail," Sinha claimed.

The court disagreed with the submission that the graves were causing health hazards.

"This provision has been made... say there is a dead animal on the street or someone's premises, then only that nuisance has to be removed. It is not for the removal of graves if the grave has been put in with the consent of the authorities who own that land. Jail is not a public place. It is a place owned by the State established for the specific purpose of incarceration of accused or those who are convicted," the bench said.

It also asked why the petitioners are raising the issue after nearly 12 years.

"Somebody's last rites are to be respected. At the same time, we need to ensure that no law and order issue arises. The government decided to have the burial in jail keeping these issues in mind. Can you challenge it 12 years later?" the court asked.

The plea claimed that the existence of these graves inside the jail "violates the express provisions of the Delhi Prisons Rules, 2018", which mandate disposal of bodies of executed prisoners in a manner that prevents glorification, ensures prison discipline, and maintains public order.

“The petitioners therefore seek the urgent intervention of this court to direct the respondents to remove the said graves from Tihar Jail and ensure their relocation in a secure, undisclosed manner, in line with established state practice in the cases of executed terrorists such as Ajmal Kasab and Yakub Memon, where every precaution was taken to prevent glorification," it said.

The plea said both Bhatt and Guru, acting under the influence of “extremist Jihadi ideology”, orchestrated and executed acts of terrorism that gravely threatened the sovereignty, territorial integrity and security of India.

While Bhatt was hanged in 1984 over the abduction and killing of an Indian diplomat in the UK, Guru was executed in February 2013 after his conviction in the 2001 Parliament attack case.