Uttar Pradesh government’s decision to forcibly cremate a Dalit gang rape victim in the middle of the night was a violation of human rights and reasons given by the Hathras district administration to deny her family a chance to conduct her last rites were not satisfactory, the Lucknow bench of the Allahabad high court has said.
The observation was part of an order — made public on Tuesday — by the division bench of justices Pankaj Mithal and Rajan Roy who recorded statements of the victim’s family and government officials on Monday.
In the order, the judges said district magistrate Praveen Kumar Laxkar could not satisfy them about the observance of last rites. The 19-year-old Dalit woman was cremated against her family’s wishes at 2.30am on September 30.
“We do not at this stage find any good reason on behalf of the administration (Hathras) 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,” said the court.
The judges said they will focus on two things: Possible violation of rights of the victim and her family, and larger issues involved in the context of such rights. “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 court observed. The court also found the decision to cremate the victim was taken at the local level.
In the order, the court focused on the rights of last rites and traditional rituals accorded to the kin of the deceased. “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,” said the court.
In court, the mother of the victim broke down while saying she was not allowed to see her daughter’s face. The victim’s brother and aunt said the authorities acted in a high-handed manner. Laxkar said an effort was made to give the incident a political colour and the cremation was done at night for law-and-order considerations.
He claimed the victim’s father consented to the cremation and it was done with full honour. “A proper pyre was laid. In the cremation, the kerosene was not used and probably, the cans which may be appearing in some of the videos were those carrying Ganges Water (Ganga Jal),” he told the court, as per the order.
The court also took up the controversy surrounding the gang rape of the victim. Additional director general (law and order) Prashant Kumar and others had cited the forensic report — which found no presence of semen — to deny that the victim was raped.
The court asked Kumar if it was proper for anyone not directly connected with the investigation to comment on any evidence relating to the offence.
“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,” the order said.
Transfer of officials
Awanish Kumar Awasthi, additional chief secretary (home), told the court that the state made no effort to hush the incident up and was willing to cooperate.
But the court took note of suspension of Vikrant Vir, who was Hathras superintendent of police. The judges asked Awasthi why only Vir was suspended while the district magistrate — who ordered the cremation — was allowed to continue.
“He could not give any satisfactory reply in this regard, as to why the two officers had been treated differently. 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,” the order read.
The court has summoned Vir for the next hearing.
In its order, the court directed the following: ask Awasthi to come out with a draft policy so that proper guidelines may be laid to avoid incidents of this kind in future, ensure the safety and security of the victim’s kin, inquiry or investigation be kept confidential, bar any officer not directly connected with the investigation from making any statement in public, and request the media and political parties to not disturb social harmony or infringe upon the rights of the victim’s family and that of the accused.
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