As much as the crime of rape committed on a young girl in Hathras (UP, India), who tragically lost her battle with life day before yesterday (29th September 2020), is heinous and brutal, the actions of the Uttar Pradesh police (the jurisdictional police in particular) and the District Collector, of burning the dead body of the victim of a barbaric crime, in the dead of the night, against the will and consent of her family, their rude and insensitive attitude, the utter disregard for the emotions and sheer lack of empathy towards the extended family of the victim is horrific. It is unpardonable and has shaken the collective conscious of India.
Their actions have given rise to some major questions, some of which I'm listing here below:
As I understand Article 21 of the Indian Constitution which guarantees every person right to life with dignity, and this includes the right to have a decent burial/cremation/last rites as per traditions or will of the deceased.
297, Indian Penal Code (hereinafter "IPC") deals with the offence of trespassing on burial places etc., including offering any indignity to human corpse.
Which legislation gives the explicit right/power to the State to bury/cremate/burn a dead body of a victim of a heinous crime without the will and consent of her family?
Doesn't the hospital have an obligation to hand over the dead body of the victim to her family?
Do the hospitals have any right to hand over the dead body of the victim to the State, after sunset, before sunrise, in medico-legal cases?
Coming specifically to the Hathras case, what was the grave urgency on the part of the State to burn the dead body of the victim in the middle of the night, against the will of the victim's family?
Does it not amount to destruction of evidence?
Does it not amount to an atrocity under the Scheduled Caste/Scheduled Tribes (Prevention of Atrocities) Act, 1989 (as amended) (hereinafter "POA Act") for intentionally insulting a victim who is a member of Scheduled Caste?
Going by the above points, can the concerned police officers and the District Collector be booked for the destruction of evidence, insulting the dead body, multiple other offences under the IPC, PCR Act and POA Act?
The Supreme Court of India in Armugam Servai V. State of Tamil Nadu (2011 6 SCC 405) noted that "the caste system is a curse on the nation and the sooner it is destroyed the better." Dealing with offences against Scheduled Castes under the POA Act, the court also touched upon 'Honour killings' and stated "we direct the administrative and police officials to take strong measures to prevent such atrocious acts. If any such incidents happen, apart from instituting criminal proceedings against those responsible for such atrocities, the State Government is directed to immediately suspend the District Magistrate/Collector and SSP/SPs of the district as well as other officials concerned and charge sheet them and proceed against them departmentally if they do not (1) prevent the incident if it has not already occurred but they have knowledge of it in advance, or (2) if it has occurred, they do not promptly apprehend the culprits and others involved and institute criminal proceedings against them, as in our opinion they will be deemed to be directly or indirectly accountable in this connection."
The Apex Court also specifically mentioned that the "copy of this judgment shall be sent to all Chief Secretaries, Home Secretaries and Director Generals of Police in all States and Union Territories of India with the direction that it should be circulated to all officers up to the level of District Magistrates and S.S.P./S.P. for strict compliance. Copy will also be sent to the Registrar Generals/Registrars of all High Courts who will circulate it to all Hon'ble Judges of the Court."
The Hon'ble Supreme Court is clear when it stated that right to dignity prevails even after death. It further has gone on to state that "it is true that life in its expanded horizons today includes all that give meaning to a man's life including his tradition, culture and heritage and protection of that heritage in its full measure would certainly come within the encompass of an expanded concept of Article 21 of the Constitution." (Ram Sharan Autyanuprasi V. Union of India, AIR SC 549). The Court has also observed that the "right to dignity and fair treatment under Article 21 of the Constitution of India is not only available to a living man but also to his body after his death." (Pt. Parmanand Katara V. UoI, 1995 (3) SCC 248). In another instance the Apex Court has upheld "the right of a homeless deceased to have a decent burial as per their religious belief and the corresponding obligation of the State towards such people." (Ashray Adhikar Abhiyan V. UoI, AIR 2002 SC 554).
This being the case, has the UP police, the District Collector and by extension the State, not violated this fundamental right of the victim when they refused to hand over the body to her family and forcibly burn the same?
The District Collector has stated that they have obtained consent from the victim's family for conducting her last rites. However the family denies it. It might very well be possible that tomorrow the administration might come up with an excuse of the "COVID-19 protocol" which prohibits large gathering.
The Hon'ble courts have suo motu taken up cases when dead bodies were not buried with dignity with respect to deaths that have occurred due to COVID-19 (Madras High Court, April 2020). Can one hope to see similar action by the courts in this matter as well? Or will they continue to remain silent?
A few options that may be considered are (i) filing a writ under Article 32 before the Supreme Court or under Article 226 before the High Court; (ii) because we consider rape and murder as crimes against the State, it should be a matter of public concern, hence a Public Interest Litigation before the Apex Court would be an option and (iii) any concerned person/activist approaching the court under the POA Act.
Now there are two important aspects in the Hathras case, first, ensuring justice to the victim in case of rape and murder by conviction of the accused through fast track courts and the second, is fixing liability on the State, especially the jurisdictional police and the District Collector for the grave violation of multiple provisions of law including the fundamental law of the land, the Constitution of India.
Unless and until criminal liability is fixed on the jurisdictional police and the Collector who is the District Magistrate, who is also the Chairman of the District Vigilance and Monitoring Committee under the POA Act, I'm afraid this kind of cases will keep on repeating.
Ideally in order to instil confidence in the victim's family, the State should have suspended the jurisdictional police officer who has refused to file the FIR when the issue was brought to his notice and booked him under Sec. 4, POA Act for negligence of his duties. This was not done. Further after the action of burning the dead body of the victim against the will and without the consent of her family, should have led to the suspension of the District Collector and concerned police officers. But it has not been done.
An equally vital issue that is being overlooked and ignored is the applicability of the Protection of Civil Rights Act, 1955 (hereinafter PCR Act; formerly called the Untouchability Offences Act). Sec. 12 is clear about the presumption where offences under the Act are committed against a member of Scheduled Caste, the court shall presume, unless the contrary is proved, that such act was committed on the ground of untouchability. Such offences have been committed in this case like enforcing disability in the observance of any social or religious custom, usage or ceremony of taking part in, or taking out, any religious, social or cultural procession (Sec. 4, PCR Act). The fact that the jurisdictional police and the District administration did not allow the victim's family to conduct the last rites of the victim according to their religion and culture, attracts this provision. The PCR Act is still in place and has not been repealed, making those offences cognizable notwithstanding the Code of Criminal Procedure.
On 1st October 2020, the UP ADG stated that as per the forensic reports the victim was not raped! Anyone who is aware of the way law functions would have expected this, the day the victim's dead body was burnt. Now there remains no evidence for re-examination. It has been burnt to ashes. These kinds of actions by the authorities make one rethink about using narco-analysis, brain mapping and polygraph tests, regardless of what the courts have stated so far. When the whole system is against a helpless victim, how and where else can one look for answers? Ways and means have to be redesigned to provide justice to the victim under law. This is where the presumption clause like that in the PCR Act comes into play. It should be the obligation of the justice delivery system to explore truth, if need be by using scientific methods and technology.
As to the 'highly debated' question about the 'caste angle' to the rape and murder in this case, one must not forget and overlook the way the POA Act operates. The fact that when there is an atrocity committed on a member of Scheduled Castes or Scheduled Tribes, this Act applies by default. That is to say, the 'caste angle' is presumed by law, for very good reasons, which need not be elaborated here and can be left for the good conscience of the readers. There are no two ways to look at it!
The above sections are only a few provisions which I have highlighted, which get attracted in addition to the IPC as amended after the Nirbhaya case. Caste however remains to be the root cause, Untouchability being the ugliest form of casteism. As Babasaheb Ambedkar rightfully pointed "Caste is a state of mind. It is a disease of the mind." What happened in Hathras with the young girl belonging to Scheduled Castes and her family is a reflection of the castiest mindset prevailing among a large section of the country. It is a classic example of caste supremacy of the so-called upper/dominant castes. It is not to be forgotten that the news of the Hathras rape victim passing away came on the 14th anniversary of the infamous Khairlanji massacre, where a family belonging to Scheduled Castes, mother and daughter were paraded naked, sexually abused and murdered in cold blood, along with her two sons.
The State and the 'civil' society has continued to be apathetic in a large number of such atrocities against Dalits. And in the case at hand, of that of Hathras rape and murder, the authorities have taken it further by unilaterally decided to not hand over the dead body of the victim to her distraught family and burn the same without their consent and against their will. This seemingly unprecedented high handedness of the jurisdictional police and the District administration, can be considered as one of the rarest of the rare cases and hence must be firmly dealt with as per the provisions of the law. This case must be an eye opener for the makers of public policies to assess the role and character of State in dealing with such cases.
The author is a Research Scholar at Lancaster University, UK.