Plea over removal of Maqbool Bhat, Afzal Guru’s graves at Tihar junked

The Delhi High Court on Wednesday declined to entertain a public interest litigation (PIL) seeking the removal of graves of Kashmiri separatist leader Maqbool Bhat and terrorist Afzal Guru from Tihar Jail, saying that such a decision falls within the domain of the government and involves law and order considerations.

A Division Bench comprising Chief Justice D K Upadhyaya and Justice Tushar Rao Gedela observed that while the graves should not become a site of pilgrimage or glorification, a PIL could not be founded solely on media reports or social perception. The court emphasised that empirical evidence would be necessary to substantiate claims of glorification.

The petition, filed by the Vishwa Vedic Sanatan Sangh, alleged that the presence of the graves had turned the jail into “a site of radical pilgrimage where extremist elements gather to venerate convicted terrorists”. It argued that this practice undermined national security, public order and secular principles enshrined in the Constitution. The plea sought relocation of the remains to a secret location to prevent glorification and misuse of the jail premises.

“The continued existence of these graves inside a state-controlled prison is illegal, unconstitutional, and against public interest,” the PIL said. It also cited the Delhi Prisons Rules, 2018, claiming they mandate the disposal of executed prisoners’ bodies in a manner that prevents glorification and maintains prison discipline.

During the hearing, the court questioned whether any law prohibited graves within prison premises. “Tell us which law has been infringed and which fundamental right is affected. Something you wish for cannot form the basis of a PIL,” the Bench remarked. The petitioner’s counsel relied on prison rules and municipal law, arguing that bodies must be transported outside the jail to designated burial grounds.

The Bench, however, rejected this interpretation. “The rules provide for transfer with due solemnity and respect for the dead; they do not mandate that every body must be removed from the jail. There is no legal provision requiring cremation outside prison,” the Court noted. It also questioned claims of public nuisance, pointing out that Tihar is a State-owned prison, not a public space.

While agreeing that glorification should be prevented, the court insisted that the petitioner provide concrete data showing that the graves were being treated as a pilgrimage site. “We can direct the jail authorities to stop such activity, but removal of the graves after 12 years is not a matter the court can mandate,” it said. The Bench noted the government had originally approved the graves inside Tihar to pre-empt law and order issues.

Following the proceedings, the petitioner sought permission to withdraw the PIL with liberty to refile with supporting evidence. The Court dismissed the petition as withdrawn.