[Hathras case] Hasty cremation of victim at odd hours without family's consent prima facie violated human rights: Allahabad HC
"Cremation is one of the 'Sanskars' i.e., antim sanskar recognized as an important ritual which could not have been compromised taking shelter of law & order situation", the Court observed on Monday.
[Hathras case] Hasty cremation of victim at odd hours without family's consent prima facie violated human rights: Allahabad HC
Hathras Gang Rape, Allahabad HC

The Allahabad High Court on Monday pulled up the Uttar Pradesh authorities for their decision to cremate the Hathras rape victim at odd hours and without handing over the body to the family members or taking their consent to do so.

The Bench was hearing the suo motu case registered over the incident on October 1.

Noting that the decision to cremate the victim in this manner was taken jointly by the administration at the local level and was implemented on the orders of the District Magistrate, Hathras, a Bench of Justices Pankaj Mithal and Rajan Roy observed,

"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. 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 recognized as an important ritual which could not have been compromised taking shelter of law & order situation."
Allahabad High Court

The Court further noted,

"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."

Allahabad High Court

Apart from the criminality of the incident, which was under investigation, the High Court remarked that it needed to consider whether the hasty cremation of the victim at odd hours was in gross violation of her fundamental rights as enshrined under Articles 21 and 25 of the Constitution of India.

The High Court emphasised,

"Sensitivities of the people which the constitution recognizes as fundamental rights such as a 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 can not be trampled or trifled casually or whimsically especially when those likely to be deprived are of the downtrodden class, uneducated and poor."

Thus, the Additional Chief Secretary (Home) has now been directed to come out with a draft policy containing guidelines for district officials to be following in the future in matters involving cremation/burial of the dead in similar circumstances.

Furthermore, the State administration has been directed to ensure the safety and security of the family members of the victim. The investigation being carried out by the SIT or by any other agency such as CBI is to be kept confidential. No report or post thereof is to be leaked out to the public, the Court said.

"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 and confusion amongst the masses, who may not be aware of niceties of law thereby fuelling emotions on both sides."
Allahabad High Court

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

It was also directed that any compensation announced by the State may be offered to the family at the earliest. In case the family refuses to accept the same, it is to be deposited with the District Magistrate concerned, who shall invest it in an interest-bearing account with a Nationalized Bank to be utilized as may be directed by the Court.

The Superintendent of Police, Hathras, Vikrant Vir who was later suspended, did not appear yesterday, has been asked to appear on the next date. The State Government has been asked to communicate the said order to him.

The SP, Hathras Vikrant Vir and District Magistrate Praveen Kumar Laxkar have been granted the liberty to file their respective affidavits containing their versions in the matter.

During the hearing, the family members of the victim narrated their versions of the incident before the Court. They told the Bench that the officials had not handed over the victim's body to the family and that it had been cremated in the absence of the family and without their consent.

The District Magistrate, Hathras claimed that the decision to cremate the victim was taken in the interest of maintaining law and order. Echoing submissions made before the Supreme Court by the State of Uttar Pradesh, he submitted that there were elements seeking to give the incident a political colour and that the State was on high alert the day of the cremation as the Babri Masjid verdict was due to be pronounced.

The High Court, however, opined that the District Magistrate, has not satisfied the Court about why the authorities did not allow the observance of last rites while cremating the victim's body as per traditions and customs of the family.

The Court also quizzed the authorities on whether they were aware that under the prevailing law,

" the 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."

Questions regarding the propriety of making public comments on the case by persons not connected directly in the investigation were also asked by the Bench.

The In-charge District Judge, Hathras, Ashish Jain and Additional District Judge, Hathras SS Virwan, who escorted the family of the victim from their Village to the High Court, Lucknow were present during the hearing yesterday.

Additional Chief Secretary (Home) Awanish Kumar Awasthi, Director General of Police HC Awasthy, ADG (Law and Order) UP, Lucknow Prashant Kumar, District Magistrate, Hathras Praveen Kumar Laxkar and Superintendent of Police, Hathras, Vineet Jaiswal were also present.

Senior Advocate JN Mathur and Advocate Abhinav Bhattacharya appeared as amicus curiae.

Advocate Seema Kushwaha appeared for the family of the victim. Senior Advocate Aishwarya Bhati, assisted by Additional Advocate General Vinod Kumar Shahi and Standing Counsel Manish Mishra appeared for the State.

The matter will be next heard on November 2.

Read the Order here:

Suo-Moto Inre Right To Decent & Dignified Last Rites Cremation WPIL(L)_16150_2020.pdf

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