New Delhi: “The State must respect a dead person by allowing the body of person to be treated with dignity and unless it is required for the purposes of establishing a crime to ascertain the cause of death and be subjected to postmortem or for any scientific investigation, medical education or to save the life of another person in accordance with law, the preservation of the dead body and disposal in accordance with human dignity.”
The Lucknow Bench of the Allahabad High Court has taken suo moto cognizance of the Hathras gang rape case, stating that is an ‘extremely sensitive’ matter, touching upon the basic human/ fundamental rights of the citizens. The Bench of Justices Jaspreet Singh and Rajan Roy has issued notices to the State of U.P. through Additional Chief Secretary (Home), the Director General of Police, U.P., Lucknow, Additional Director General of Police, Law and Order, U.P., Lucknow, District Magistrate, Hathras, Superintendent of Police, Hathras, and has asked them to be present before the Court on the next date of hearing, October 12.
It said that they shall put forth their version with support of requisite material and shall also apprise the Court about the status of the investigation relating to the crime against the deceased victim. The Court has also summoned the victim’s family also to hear their version. To this end, the State Authorities have been directed to ensure that no coercion, influence or pressure is exerted upon the family members of the deceased in any manner, by anyone.
‘We direct the Senior Registrar of this Court at Lucknow to register a suo moto Public Interest Litigation with the title ‘In Re : Right to decent and dignified last rites/cremation’ and place it before the appropriate Bench having jurisdiction to hear PILs – HC ordered.
The 19-yr-old victim in this case was allegedly tortured and gang-raped by four men on September 14 in UP’s Hathras district. It is alleged that the perpetrators cut of the tongue of the victim to ensure that she does not give any statement to the police and repeatedly threatened her family for several days. She was recovered from the fields in a critical condition and was admitted to a hospital in Aligarh for treatment.
On September 28, she was shifted to AIIMS Delhi, where she succumbed to her injuries the next day. Allegedly, the victim’s family was not even allowed to cremate her body but was instead, locked up in their home during cremation in the wee hours on September 29.
The Court noted that the victim’s body was taken to her native village but ‘surprisingly and painfully enough’ it was not handed over to her family members for last rites as per prevalent customs and religious inclinations.
Rather, it is alleged that her body was cremated with the help of some other persons. Further the Court noted, as per media reports, the cremation took place at about 2:00 – 2:30 AM and from the aforesaid reports and news items what comes out is that the family of the deceased victim followed Hindu traditions, according to which, last rites are not performed after sunset and before 3 day break.
It added, The newspaper reports and the electronic media program/video clippings show that the family members kept demanding for the body and also informed the authorities that as per traditions followed by them, cremation cannot take place after sunset and before day break, yet, the District Authorities got the cremation performed, contrary to the traditions which the family followed.
The Court said that if these reports are true, then it would be a case of gross violation of basic human and fundamental rights enshrined under Article 21 and Article 25 of the Constitution of India in a most blatant and uncalled for manner, something which is absolutely unacceptable in our country governed by Rule of Law and the Constitution.
At this juncture, the Court recalled the saying of Oscar Wilde, Death must be so beautiful. To lie in the soft brown earth, with the grasses wearing above one’s head, and listen to silence. To have no yesterday, and no tomorrow. To forget time, to forget life, to be at peace. In this case sadly, the Court said, As it is, the deceased victim was treated with extreme brutality by the perpetrators of the crime and what is alleged to have happened thereafter, if true, amounts to perpetuating the misery of the family and rubbing salt in their wounds.
The Court was also cognizant of the fact that certain officers of the State Government have given statement in the newspapers and electronic media that cremation was performed with the consent of the family members and they were present during it.
However, it wished to examine whether the economic and social status of the deceased’s family was taken advantage of by the State Authorities to oppress and deprive them of their Constitutional rights
The rights of individual citizens in the Country and the State especially that of the poor and the downtrodden such as the family members of the deceased victim and the deceased herself are paramount and the Courts of Law are under a bounden duty to see that the said rights available under the Constitution are protected at all costs and the State does not in its misplaced endeavour for political or administrative reasons transgress the limits of its powers to encroach and violate such rights, especially in the case of poor and the weak,” the Court said.
It added, We are inclined to examine as to whether there has been gross violation of the fundamental rights of the deceased victim and the family members of the victim; whether the State Authorities have acted oppressively high handedly and illegally to violate such rights as if it is found to be so, then, this would be 9 a case where accountability will not only have to be fixed but for future guidance also stern action would be required,” the Court said.
Therefore, even though the State Government has formed a SIT to investigate this henious crime, the Court has left it open for consideration on future dates, as to the necessity of monitoring the investigation or getting it conducted through an independent agency as per law.
The Court said that this matter is of “immense public importance” and as it involves allegation of high handedness by the State Authorities resulting in violation of the basic human and fundamental rights not only of the deceased victim but also of her family members.
It has appointed Senior Advocate Jaideep Narain Mathur and Advocate Abhinav Bhattacharya as Amicus Curie to assist the Court.
“The incidents which took place after the death of the victim on 29.09.2020 leading up to her cremation, as alleged, have shocked our conscience, therefore, we are taking suo moto cognizance of the same” the Court observed.