Hathras Case: Allahabad HC berates UP Govt officials; says the Victim was at least entitled to decent cremation; also questions continuation of DM [Read Order]

The Allahabad High Court in a damning order against the Uttar Pradesh government has expressed its displeasure at the manner in which the dead body of the alleged Hathras gang-rape victim was cremated late at night without the consent and in the absence of the family members of the victim.

After hearing the victim's family members and officials of the UP Government, a bench of Justices Pankaj Mithal and Rajan Roy at Lucknow Bench said the late-night cremation of the victim's dead body in the name of a law and order situation, prima facie, was an infringement upon the human rights of the victim and her family.

"The victim was at least entitled to a decent cremation in accordance with her religious customs and rituals which essentially are to be performed by her family. Cremation is one of the 'Sanskars' i.e., antim sanskar recognized as an important ritual which could not have been compromised taking the shelter of law & order situation", the bench said.

It added that it did not find any good reason why the Hathras district administration could not have handed over the body to the family members for some time, say even for half an hour, to enable them to perform their rituals at home and thereafter to cremate it either at the night or the next day.

The Court, thus, opined that the issues that arose for its consideration, apart from the crime which is under investigation by the police/CBI for the purposes of the trial, was whether the hasty cremation of the dead body of the victim in the odd hours of the night without revealing her face to the family members or allowing them to undertake the necessary rituals and in the absence of their consent and presence would amount to a gross violation of her fundamental/human rights as enshrined under Articles 21 and 25 of the Constitution of India. If so, who would be responsible so as to be held accountable and liable and how would the family of the victim be compensated for it.

It said its "anxiety" as of now was on two counts; firstly, whether there was any violation of the fundamental rights of the deceased victim and her family; and secondly, the larger issue, in the context of such rights which are available to all residents of the State, was that these valuable constitutional rights were not compromised casually and whimsically.

"The guiding principle of governance and administration, after independence, should be to 'serve' and 'protect' people and not to 'rule' and 'control' as was the case prior to independence. The government should come out with appropriate procedures as guidance for district officials to deal with such situations", the Court said.

Dressing down of UP Government officials

The Court also expressed its displeasure at Prashant Kumar, ADG (Law and Order) for commenting that no rape had taken place in the Hathras even though he was not directly involved in the investigation, which was still pending.

It questioned ADG (Law and Order) whether it was proper for anyone not directly connected with the investigation to comment on any evidence relating to the offence alleged, especially if the allegation was of rape, or to draw conclusions based thereon as to whether the offence was committed or not, when the investigation was still pending and such person was not part of the investigation. The ADG, in response, conceded that it should not happen.

The Court also questioned the ADG (Law and Order) if he was aware of the legal amendments relating to the definition of rape w.e.f 2013. The absence of semen during a forensic examination, though a factor for consideration, would not by itself be conclusive of rape. He replied that he was aware of the same.

Earlier, Prashant Kumar, ADG (Law and Order) and Praveen Kumar Laxkar, District Magistrate, Hathras had commented upon the report of the forensic laboratory publicly though they were not directly involved in the investigation, to say that no rape had been committed.

The court also questioned Awanish Kumar Awasthi, Additional Chief Secretary (Home), whether it was proper/fair to allow Praveen Kumar Laxkar to continue as DM Hathras as the proceedings relating to the late-night cremation in which he had a role to play, are pending. Awasthi, in response, said he would look into this aspect and take a decision.

Ensure the safety of the victim's family and confidentiality of probe

The High Court, for the time being, has directed the State Government to ensure the safety and security of the family members of the victim so that no harm is caused to them.

It also directed that the investigation, which is being carried out in the matter, either by the SIT or by any other agency such as the CBI, be kept confidential and no report or post thereof be leaked to the public.

It added that no officer who was not directly connected with the investigation should make any statement publicly regarding the offence alleged or otherwise based on evidence collected as it could lead to unnecessary speculation and confusion among people, who may not be aware of nuances of the law.

The Court also requested the media and the political parties to air their views in a manner that did not disturb the social harmony or infringe upon rights of the victim's family and that of the accused.

"No one should indulge in character assassination of the victim just as the accused should not be pronounced guilty before a fair trial. The investigating agency and the Courts should be allowed to determine these issues", the Court directed.

It also took note of the fact that the then SSP of Hathras, Vikrant Vir, who is now under a suspension had not appeared before it despite a court order; instead, the present SSP had appeared. HC ordered Vikrant Vir to be present at the next hearing on November 2.

Read the Order

http://theleaflet.in/wp-content/uploads/2020/10/Allahabad-High-Court-Order_Hathras-Case_Oct-12.pdf