On the Hathras gang rape incident which has put a question mark on the UP administration's responsibility, the Lucknow bench of Justice Pankaj Mithal and Rajan Roy of Allahabad High Court expressed a grief dissatisfaction towards the administration of Uttar Pradesh. The court expressed dissent with the cremation that was being undertaken by the government officials in such a rush without waiting the arrival of the victim’s family members and stated that the administration has somehow violated the basics rights of the victim.
“India is a country that follows the religion of humanity, where each one of us is 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," the Bench of Justices Pankaj Mithal and Rajan Roy observed.
The high court said the authorities must respect the fundamental right of a decent burial when pitted against considerations of maintenance of law and order.
The court has asked the State Additional Chief Secretary (Home) to come up with proper guidelines in the next hearing (November 2, 2020) on how such cases should be dealt with so that the hasty cremation does not happen in the future. Furthermore, it also directed the state administration to provide security and safety to the deceased survivor’s family member. It also said that the investigation being conducted in the case by the S.I.T and the CBI should be kept in full confidence.
The deceased survivor’s family alleged that the family claimed that they insisted on conducting the cremation the next morning but the authorities chose to cremate the body despite that.
While the local administration claimed that conducting the cremation was important to avoid the miscreants that could make the incident political.
After hearing the versions of both the parties, the Court was of a prima facie opinion that the administration had failed to show "any good reason" 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. The Court also noted that it was an admitted fact that the administration had not categorically refused the family members to see the face of the deceased victim however, it remarked that the fact remains that it was not shown to any of them in spite of their repeated requests.
The bench stated, “Thus, the expanded fundamental right to life to live with dignity and to exist with dignity even after death as well as the 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.”
“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,” it further said.
The court considered that “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 the 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 is compensated for it."
“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 cannot be trampled or trifled casually or whimsically especially when those likely to be deprived are of the downtrodden class uneducated and poor," the Bench observed while emphasizing that the case at hand would have wider ramifications on the public”.
"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 HC said
As per requests filed by Seema Kushwaha, the counsel representing the victim’s family, the court has directed that the SIT/CBI investigation shall be kept fully confidential and no report will be leaked.
The HC has asked the state government to release the compensation due to the victim’s family at the earliest. In the event they refuse, it shall be deposited in a bank and maybe utilized according to directions of the high court.