Delhi High Court Refuses To Entertain PIL To Remove Graves Of Afzal Guru, Mohammad Maqbool Bhatt From Tihar Jail Premises

The Delhi High Court on Wednesday refused to entertain a PIL seeking the removal of the graves of Mohammad Maqbool Bhatt and Mohammad Afzal Guru, who were executed for terrorism-related offences, from Central Jail, Tihar.

As an alternative, it was prayed that the authorities relocate their mortal remains to a secret location in accordance with law, “so as to prevent glorification of terrorism and misuse of the jail premises”.

A division bench comprising Chief Justice DK Upadhyaya and Justice Tushar Rao Gedela directed the petitioner to withdraw his plea, with liberty to file afresh. The court said: 

"We understand that there are judgments that any kind of glorifications must not be permitted…. It (burial) was performed in year 2013. We are in 2025. You are calling it nuisance. Prima facie it may be anything but a nuisance within the meaning of the Act (Delhi Municipal Corporation Act)...These are sensitive issues from both angles. Somebody's last rites need to be respected and thats why provision in Prison Rules say that it has to be done with solemnity."

"We need to ensure that no law and order situation arises. Keeping in view all these aspects the government took the decision. Can we challenge the decision now after 12 years?….We need to have a data. The petition and prayer should be to direct the jail authorities to take steps so that no glorification takes place...," it added.

During the hearing today, the Court, at the outset, asked petitioner's counsel to explain infringement of any law or statute or fundamental right, adding that “something which you wish cannot become subject matter of PIL.”

The counsel appearing for the petitioner relied upon Rules 895 to 897 of the Delhi Prison Rules on the issue. To this, the Bench remarked that the emphasis of the Rule was that if a body has to be transported outside the prison, it has to be done with all solemnity. It doesn't say that each body has to be taken outside prison, CJ remarked.

The Counsel stated that the grave was a 'nuisance' under Section 398 of the Delhi Municipal Corporation Act and that there is information in the public domain, that in order to pay homage to the graves, people were committing crimes to go to jail. As per the counsel, the situation was creating a nuisance for jail inmates as well as the jail authorities.

"What kind of nuisance you are talking about? Understand the word nuisance. It may be a cause of concern we don't know, but that can't be equated with the kind of nuisance the authority is concerned with under Section 398. This provision is made for any kind of nuisance to be removed. Not for the removal of a grave if that grave has been put in with the consent of the authority which owns the land. Jail is not a public place. Jail is a place owned by the State established for a specific purpose of incarceration," the Chief Justice said.

As the counsel said that it was a grave of a terrorist which was resulting in the glorification of act of terrorism, the CJ added:

“We are not on this…. You have to make out case of infringement of law or your fundamental right…. Let's be very clear. It's a matter to be taken elsewhere. I like this, you like something else. These are not matters to be taken in courts. There are other forums. For coming to court, you need to establish infringement of fundamental or legal rights. We are afraid we don't prima facie agree with your submission that its a nuisance and the Commissioner of MCD is under obligation to remove it.”

The Court also remarked that there is no law or statute which prohibits burial or cremation inside jail. It also questioned the petitioner's counsel to explain the material to justify his argument that people were going inside jail and paying homage to the graves in the form of a pilgrimage.

The plea, filed through one “Vishwa Vedic Sanatan Sangh”, stated that the construction and continued existence of these graves inside a State-controlled prison is illegal, unconstitutional, and against public interest.

“It violates the express provisions of the Delhi Prisons Rules, 2018, which mandate the disposal of the bodies of executed prisoners in a manner that prevents glorification, ensures prison discipline, and maintains public order”, it said.

It was claimed that the presence of the graves has turned 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”, stated the petitioner.

In support of the prayers, the petition cited the case of executed terrorists Ajmal Kasab and Yakub Memon, whose burial, according to the petitioner, was in a manner that prevented glorification.

Referring to the Prison Act, 1894, the Delhi Jail Manual, 2018, the DMC Act, and the Master Plan of Delhi–2021, it was argued that the legal provisions and rules do not permit the creation of religious structures, shrines, or graves within prison premises.

“…neither the said Act nor the Rules provide for the burial of a terrorist or a convict inside the jail premises. However, it is a matter of record that two terrorists, who were awarded the death sentence in Tihar Central Jail, Delhi, were buried within its premises,” it said.

The petitioner further claimed that the presence of the graves within jail premises poses a serious risk of contagious and dangerous diseases to both the inmates and the employees of Tihar Jail.

Case Title: Vishwa Vedic Sanatan Sangh v. Union of India & Ors. 

Citation: 2025 LiveLaw (Del) 1179