Allahabad HC questions official’s rape denial, says cremation violated rights of victim, family

“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. Government should come out with appropriate procedures as guidance for district officials to deal with such situations,” the court said.

On the police claim that the victim was not raped, the court said: “We asked Sri Kumar (Prashant Kumar, ADG, Law and Order) as to whether it was proper for anyone not directly connected with investigation to comment on any evidence relating to the offence alleged, specially if the allegation is of rape, or to draw conclusions based thereon as to whether offence was committed or not, when the investigation was still pending and such person was not part of the investigation, he fairly agreed that it should not happen.”

“We also asked him as to whether he was aware of the amendments in law relating to definition of rape w.e.f 2013 and that mere absence of semen during forensic examination, though a factor for consideration, would not by itself be conclusive as to whether rape had been committed or not, if there are other admissible evidence. He said that he was aware of the same,” it said.

Citing forensic reports, police had denied that the woman was raped. Addressing a press 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 in the viscera sample. The post mortem report states that the cause of death was due to trauma caused by the assault. Despite the statements by officials, some wrong information was circulated in the media.”

The woman, who was assaulted and allegedly gangraped by four upper caste men on September 14, died at Delhi’s Safdarjung Hospital on September 29. Her body was taken to Hathras, and a hurried cremation was held at around 3 am on September 30 – none of her immediate family members were present at the last rites.

Taking suo motu cognizance of the case, especially the hurried cremation, the Lucknow bench of the Allahabad High Court had directed senior officials of the state government and police to be present at the hearing on Monday. The court had also asked the victim’s family members to be present to give their version.

Hathras District Magistrate Praveen Kumar Laxkar told the court the decision to carry out the cremation was taken to “maintain the law and order situation”.

“We do not at this stage find any good reason on behalf of the administration as to why they could not hand over the body to the family members for some time, say for even half an hour, to enable them to perform their rituals at home and thereafter to cremate it either in the night or next day,” the court said.

“India is a country which follows the religion of humanity, where each one of us are supposed to respect each other in life and in death. However, the above facts and circumstances, as of now, ex facie, reveal that the decision to cremate the victim in the night without handing over the body to the family members or 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 in the name of law and order situation, is prima facie an infringement upon the human rights of the victim and her family,” it said.

“The victim was at least entitled to 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 recognised as an important ritual which could not have been compromised taking shelter of law and order situation,” it said.

“Thus, the expanded fundamental right to life, to live with dignity and to exist with dignity even after death, as well as right to decent burial/ cremation appears to have been infringed, hurting the sentiments of not only the family members but of all persons and relatives assembled on the spot,” said the court.

“Thus, one of the crucial issues that springs up for our consideration, apart from criminality which is under investigation by the police/ CBI for the purposes of trial, is 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 and allowing them to undertake the necessary rituals in 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 responsible for the same so as to fix their accountability and liability and how the family of the victim be compensated for it,” it said.

“Thus the anxiety of the Court as of now is 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 in the context of such rights which are generally available to all residents of the State and even beyond it so that valuable constitutional rights are not compromised casually and whimsically,” it said.

“Sensitivities of the people which the Constitution recognises as fundamental rights such as right to decent burial/ cremation as per traditions and customs followed by the family, have to be respected and if considerations of maintenance of law and order are pitted against such valuable rights, the situation needs to be handled deftly and responsibly on a proper appreciation of both the aspects as such valuable rights cannot 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 no one from above or Lucknow had instructed him to take such decision or had directed for carrying out the cremation at night, but in the same vein, he stated that he was not aware if some instructions had been given by the State in this regard to the senior officers, who were involved in 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) as to why, if the decision to cremate the victim in 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 is still continuing at Hathras. He stated that the first report of SIT had indicted the Superintendent of Police,” the court said.

“However, on being asked as to whether the SIT had absolved the District Magistrate and, in fact, whether the role of the District Magistrate was the subject matter of SIT enquiry, he stated that it was not. He could not give any satisfactory reply in this regard, as to why the two officers had been treated differently,” it said.

“We then asked him as to whether, it is proper and/ or fair to allow the District Magistrate to continue at Hathras in the facts of the present case specially as the investigation and these proceedings relating to the very incident in which he had a role to play, are pending. Sri Awasthi stated that the government will look into this aspect of the matter and take a decision,” it said.

In its directions, the court asked the state government to “come out with a draft policy” to ensure “proper guidelines” in “matters involving cremation/ burial of the dead” in such circumstances.

It also asked the administration “to ensure the safety and security of the family members of the victim”, pay them compensation as announced earlier, and to ensure “full confidentiality” in the investigation.

“No officer who is not directly connected with the investigation should make any statement in public regarding commission of the offence, alleged or otherwise, based on evidence collected as it can lead to unnecessary speculation,” it said.

“Without in any manner intending to interfere with the right of freedom of expression, we request the media as also the political parties to air their views in a manner which does not disturb social harmony and/ 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,” it said.

The court also directed the then Hathras SP, Vikrant Vir, who is now under suspension, to appear before it at the next hearing.