The Lucknow Bench of Justices Pankaj Mithal and Rajan Roy at the Allahabad High Court heard the state of Uttar Pradesh and the victim’s family in Suo-Moto In Re : Right To Decent & Dignified Last Rites/Cremation Vs. State Of U.P. Thru Addl. Chief Secy. Home And Ors. on October 12, 2020. The victim’s family was represented by Advocate Ms. Seema Kushwaha and Ms. Aishwarya Bhati, Senior Advocate assisted by Sri Vinod Kumar Shahi, Additional Advocate General and Sri Manish Mishra, learned Standing Counsel appeared for the State. Sri J. N. Mathur, Senior Advocate along with Sri Abhinav Bhattacharya appeared as amicus curiae yesterday.
The court has passed a detailed interlocutory 11 page order. The next date for hearing is now November 2, 2020. It has directed Additional Chief Secretary (Home) to come out with a draft policy by the next date to make sure that law and order is responsibly maintained and a decent burial/cremation is ensured in the future. Specifically, all branches of the law and order machinery and administration must be aware of the basic Constitutional Rights of all Indians, consistently emphasised by the Courts, including the Supreme Court of India. The Division Bench also directed the State administration to ensure the safety and security of the family members of the victim so that no harm is caused to them. The directions also included the inquiry/investigation which is being carried-on in the matter, either by the S.I.T. or by the CBI, to be kept in full confidentially and no report or post thereof is leaked out in the public.
In a day long hearing conducted amidst tight security yesterday, October 12, the division bench recorded the statements of Om Prakash Vakmiki, father of the deceased, the mother of the deceased and the brother of the deceased. The bhabhi (sister in law), Sandhya’s statement was also recorded and all these find mention in the Order. The family unequivocally states that they were given no space for the last rites despite repeated pleadings and requests. The family will place its account on affidavit at the next date of hearing.
To avoid unnecessary confusion and speculation around the case, the court has also specifically directed that no officer who is not directly connected with the investigation should be allowed to make any statement in public regarding commission of the offence alleged. The media and political parties have been directed to act in a manner that does not disturb social harmony and violate the rights of any family member of the victim. Even though the family is reluctant to accept any compensation, the court has directed the State to offer the family monetary support at the earliest and if they still refuse to take it, it will be deposited with the District Magistrate concerned, who shall invest it in an interest bearing account with the Nationalized Bank to be utilized as directed by the Court in the future. The Order further states that no one should indulge in character assassination of the victim just as the accused should not be pronounced guilty before a fair trial. The court, which took up the matter suo motu on October 2, 2020, is hearing the account of the government and the family of the 20-year-old who died last month after brutal torture and alleged gangrape.
The Bench heard the District Magistrate, Hathras who elaborately defended the hasty cremation on grounds of a growing ‘law and order situation.’ Moreover, he insisted that it was not a disposal where ‘kerosene had been sprinkled on the body” but a proper cremation as per Hindu rites. Ruling on this aspect of the administration’s defence, the Court has observed, , “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.”
The court noted that they have two issues at hand: First, to ascertain whether there was a violation of fundamental rights enshrined under Articles 21 and 25 of the Constitution of India of the deceased-victim and her family. Second, the larger issues involved in the context of such rights which are generally available to all residents of the State and even beyond it so that valuable constitutional rights are not compromised casually and whimsically.
The court also remarked that if there is ever a similar situation in the future, the authorities must organize themselves in a manner where people’s sensitivities towards burial/cremation traditions and administration measures are both venerated. “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”, said the court.
This order comes at a crucial time examining the possibility of an infringement of important fundamental rights that guarantees all citizens Right to Life with personal liberty and freedom to practice any religion. Family members permitted to narrate their account of misery in an open court restores some faith in the system that has failed miserably to protect the young Dalit girl who was allegedly gang raped, tortured and murdered by four Thakur men in September.
On October 1, following extensive media reportage around the hasty cremation that occurred in an almost surreptitious manner at 2.30 a.m on September 30, suo moto cognisance had been taken by the same bench. On October 1, 2020, in a short order, the court had stated that, “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 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”, they noted.
Any other applications, including those received by email will be also placed for hearing on November 2.
The Order in PIL Civil No 16150 may be read here:
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