By FROM QUESTIONING the police claim that the 19-year-old Dalit woman from Hathras wasn’t raped to observing that her hurried cremation was “prima facie an infringement upon the human rights of the victim and her family”, the Lucknow Bench of the Allahabad supreme court has delivered a stinging indictment of the Uttar Pradesh police and administration.
While the Bench of Justices Pankaj Mithal and Rajan Roy heard the case on Monday, the order was made available today. The court was critical of top officials, including Prashant Kumar, ADG, Law and Order, and Awanish Kumar Awasthi, Additional Chief Secretary, Home.
“The guideline of governance and administration, after independence, should be to ‘serve’ and ‘protect’ people and to not ‘rule’ and ‘control’ as was the case before independence. The government should begin with appropriate procedures as guidance for district officials to affect such situations,” the court said.
On the police claim that the victim wasn’t raped, the court said: “We asked Sri Kumar (Prashant Kumar, ADG, Law and Order) on whether it had been proper for anyone indirectly connected with the investigation to discuss any evidence concerning the offence alleged, especially if the allegation is of rape, or to draw conclusions based thereon on whether the offence was committed or not when the investigation was still pending and such person wasn’t a part of the investigation, he fairly agreed that it shouldn’t happen.”
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“We also asked him on whether he was conscious of the amendments in the law concerning the definition of rape w.e.f 2013 which mere absence of semen during a forensic examination, though an element for consideration, wouldn’t by itself be conclusive on whether rape had been committed or not if there are other admissible evidence. He said that he was conscious of an equivalent,” it said.
Citing forensic reports, police had denied that the lady was raped. Addressing a news conference earlier this month, Prashant Kumar, ADG, Law & Order, had said: “As per the FSL (forensic science laboratory) report, no semen or sperm secretion was found within the viscera sample. The post mortem report states that the explanation for death was thanks to trauma caused by the assault. Despite the statements by officials, some wrong information was circulated within the media.”
The woman, who was assaulted and allegedly gang-raped by four upper caste men on September 14, died at Delhi’s Safdarjung Hospital on Michaelmas . Her body was taken to Hathras, and a hurried cremation was held at around 3 am on September 30 – none of her immediate relations was present at the last rites.
Taking suo moto cognizance of the case, especially the hurried cremation, the Lucknow bench of the Allahabad supreme court had directed senior officials of the government and police to be present at the hearing on Monday. The court had also asked the victim’s relations to be present to offer their version.
Hathras District Magistrate Praveen Kumar Laxkar told the court the choice to hold out the cremation was taken to “maintain the law and order situation”.
“We don’t at this stage find any good reason on behalf of the administration on why they might not fork over the body to the relations for a few time, say for even half an hour, to enable them to perform their rituals reception and thereafter to cremate it either within the night or next day,” the court said.
“India may be a country which follows the faith of humanity, where all folks are alleged to respect one another in life and in death. However, the above facts and circumstances, as of now, ex facie, reveal that the choice to cremate the victim within the night without delivering the body to the relations of their consent was taken jointly by the administration at the local level and was implemented on the orders of the District Magistrate, Hathras. This action of the State Authorities, though within the name of law and order situation, is clearly infringement upon the human rights of the victim and her family,” it said.
“The victim was a minimum of entitled to decent cremation in accordance together with her religious customs and rituals which essentially are to be performed by her family. Cremation is one among the ‘sanskars’ i.e., antim sanskar recognised as a crucial ritual which couldn’t are compromised taking shelter of law and order situation,” it said.
“Thus, the expanded fundamental right to life, to measure with dignity and to exist with dignity even after death, also as right to decent burial/ cremation appears to possess been infringed, hurting the emotions of not only the relations but of all persons and relatives assembled on the spot,” said the court.
“Thus, one among the crucial issues that spring up for our consideration, aside from criminality which is under investigation by the police/ CBI for the needs of trial, is whether or not the hasty cremation of the body of the victim within the odd hours of the night without revealing her face to the relations and allowing them to undertake the required rituals within the absence of their consent and presence would amount to denying decent cremation in gross violation of her fundamental/ human rights as enshrined under Articles 21 and 25 of the Constitution of India. If so, who is liable for an equivalent so on fixing their accountability and liability and the way the family of the victim be compensated for it,” it said.
“Thus the anxiety of the Court as of now’s on two counts; firstly, whether there was any violation of fundamental rights of the deceased victim and her family; and secondly, the larger issues involved within the context of such rights which are generally available to all or any residents of the State and even beyond it in order that valuable constitutional rights aren’t compromised casually and whimsically,” it said.
“Sensitivities of the people which the Constitution recognises as fundamental rights like the right to decent burial/ cremation as per traditions and customs followed by the family, need to be respected and if considerations of maintenance of law and order are pitted against such valuable rights, things must be handled deftly and responsibly on a correct appreciation of both the aspects intrinsically valuable rights can’t be trampled or trifled casually or whimsically, especially when those likely to be deprived are of the downtrodden class, uneducated and poor,” it said.
The court said while the Hathras DM “categorically stated that nobody from above or Lucknow had instructed him to require such decision or had directed for completing the cremation in the dark, but within the same vein, he stated that he wasn’t aware if some instructions had been given by the State during this reference to the senior officers, who were involved within the collective decision, i.e., the Commissioner, Aligarh; ADG, Agra and IG, Aligarh”.
The court also questioned why no action was taken against the Hathras DM, while the Hathras SP was suspended. “We specifically asked Sri Awasthi (Awanish Kumar Awasthi, Additional Chief Secretary, Home) on why, if the choice to cremate the victim within the night was a collective one as stated by the District Magistrate, Hathras himself, only Superintendent of Police had been suspended while the District Magistrate had been allowed to continue and remains continuing at Hathras. He stated that the primary report of SIT had indicted the Superintendent of Police,” the court said.
“However, on being asked on whether the SIT had absolved the District Magistrate and, in fact, whether the role of the District Magistrate was the topic matter of SIT enquiry, he stated that it had been not. He couldn’t give any satisfactory reply during this regard, on why the 2 officers had been treated differently,” it said.
“We then asked him on whether, it’s proper and/ or fair to permit the District Magistrate to continue at Hathras within the facts of this case especially because the investigation and these proceedings concerning the very incident during which he had a task to play, are pending. Sri Awasthi stated that the govt will check out this aspect of the matter and make a choice,” it said.
In its directions, the court asked the government to “come out with a draft policy” to make sure “proper guidelines” in “matters involving cremation/ burial of the dead” in such circumstances.
It also asked the administration “to make sure the safety and security of the relations of the victim”, pay them compensation as announced earlier, and to make sure “full confidentiality” within the investigation.
“No officer who isn’t directly connected with the investigation should make any statement publicly regarding commission of the offence, alleged or otherwise, supported evidence collected because it can cause unnecessary speculation,” it said.
“Without in any manner meaning to interfere with the proper of freedom of expression, we request the media as also the political parties to air their views during a manner which doesn’t disturb social harmony and/ or infringe upon rights of the victim’s family which of the accused. nobody should enjoy assassination of the victim even as the accused shouldn’t be pronounced guilty before a good trial,” it said.
The court also directed the then Hathras SP, Vikrant Vir, who is now under suspension, to seem before it at a subsequent hearing.
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