CJP looks at the law, including special protections for Dalits, in light of the increasing discriminations against even deceased Dalits, asking whether the guilty policemen will be punished?
The country slept over the distressing news of the Hathras Dalit girl succumbing to death, after a belated transfer to the AIMS, Delhi, after she was allegedly gangraped, and totured, by four Thakur upper caste men. The country also woke up to the horrifying news of the family of the victim alleging that UP Police forcibly cremated the remains of the girl in the dead of the night. As the case opened up, more and more shocking details have come to the fore, this latest development being the most appalling. While the police are denying these claims, news reports, eye-witness video accounts uploaded on social media, and most especially, the testimonies of the kin of the victim have a different story to tell.
“The police have forcibly taken the dead body, and my father along with them for cremation. When my father reached Hathras, he was immediately taken (to the crematorium) by the police,” the woman’s brother told news agency PTI. The villagers claimed that they wanted to take the body home and then proceed for cremation but the administration pressed for cremation at the earliest. The ambulance was also blocked but the cremation finally took place in the dead of the night, around 3 am on September 30. The most heart-renching were the wails of the Victim’s mother who said that all customary rights, including application of turmeric and bathing and soothing the body were all denied.
There is a Twitter thread posted by an India Today journalist, Tanushree Pandey which has videos showing how the villagers obstructed the ambulance and how the police were clearly exerting pressure on the kin and the villagers to cremate the body.
HAPPENING NOW — #Hathras rape victim’s body has reached her native village, Boolgarhi in Hathras, where the horrific incident took place. SP, DM, Joint Magistrate all here accompanying the family. My camera person Wakar and I will get you all the updates all through the night pic.twitter.com/VxEWDVVpsU
— Tanushree Pandey (@TanushreePande) September 29, 2020
The Chief Minister of UP has issued a statement through his Twitter account, announcing the setting up of a 3-member Special Investigation Team (SIT) to investigate the rape. The team includes officials close to the political administration: state home secretary Bhagwan Swarup, inspector general of police, Chandraprakash and a Sena Nayak from the Povincial Armed Constabulary (PAC) Poonam as members. They have been ‘instructed’ to submit their report within 7 days. Shockingly, however, the mandate of the investigation is to probe the ghastly torture and rape; there is no reference in the terms of reference into the illegal, arbitrary and forceful acts of the UP Police in forcibly keeping the family away from the cremation, denying the basic rights and dignity of the Survivor Family. Four accused have been so far arrested by UP Police and the CM has directed for the trial to be undertaken in a fast track court.
The 19-year-old Dalit girl fell victim to this heinous crime where four upper caste Thakur men allegedly gang raped her on September 14 in Hathras village. She was initially admitted to JN Medical College and Hospital in Aligarh, but was shifted to Delhi’s Safdarjung Hospital as her condition deteriorated. She succumbed to her injuries on September 29. The mass rape was accompanied by brute torture.
The issue of Dalit cremation
This is, however, not the first instance where the cremation (or last rites, even burial) of a Dalit has been unlawfully interfered with. In July, in Kakarpura village in Etawah district, UP, the body of a 26-year-old Nat woman who died of a uterus infection was already placed on the pyre when members of the more powerful Thakur community intervened and forced the family to take the body down from the pyre. The distressed family was forced to take the body to the designated cremation ground for people not hailing from ‘upper’ castes.
In March, in Puttaganal village of Davangere taluk, Karnataka, it was reported that oppressed classes were not allowed to bury their dead in graveyards belonging to other communities and were forced to bury their dead along the road. A 2011 report by DNA indicated that the Maharashtra Ministry for social justice stated that Dalit burial grounds have been usurped by upper castes in with 72.13% of the state’s 43,722 villages.
In Kerala too, the problem was documented by Sanu Kummil, a journalist, who made a documentary titled Six Feet Under on the subject, The News Minute reported in 2019. Sanu said that the lack of space in public graveyards forced people to bury the dead on their own land, and those who didn’t have enough land, had to demolish their own homes to bury their dead kin. He recorded the story of Girija who had to bury her daughters, Saji who had to bury his aunt who was laid at rest in her own kitchen and Lekha, whose uncle committed suicide and whose body was burnt along with the house he stayed in.
In January this year, The New Indian Express reported that the Dalits of Vadachinnaripalayam village in Tirupur district, Tamil Nadu had approached the district Collector alleging that for 50 years they were denied a burial ground and were using spaces available along the roadside to bury the departed.
A News18 report of November 2018 stated that Dalits of Veedhi village in Coimbatore, Tamil Nadu were forced to carry out funeral procession through garbage dump yard and sewers as they were denied access to the road used by upper castes.
Which of us can forget the death of Dalit student Rohith Vemula by suicide, an act called ‘institutional murder’ by the movement that erupted after his demise. Vemula and four other Dalit scholars were suspended by the College administration for allegedly attacking an ABVP student leader, an accusation they were cleared of through a proctorial board inquiry. They were forced to live in makeshift tents outside college campus and unable to bear the persistent humiliation, Vemula took his own life. Vemula’s body was also allegedly cremated secretively, whereas it was supposed to be buried, with only his mother present, the testimony of Susheel Kumar, a close colleague and student protesting caste discrimination in Hyderabad Central University, made to social media, revealed.
On whose side is the law?
This latest development in the case has opened the debate on how the law protects the dead and how this plays out in context of the Dalits or the Scheduled castes.
The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 or the SC/ST Act is the legal recourse when it comes to offences against Dalits. Since we are specifically addressing the issue of denial of cremation with dignity to Dalits, here are some sections of the Act that need to be necessarily invoked:
3(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe—
(r) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;
(y) denies a member of a Scheduled Caste or a Scheduled Tribe any customary right of passage to a place of public resort or obstructs such member so as to prevent him from using or having access to a place of public resort to which other members of public or any other section thereof have a right to use or access to;
(za) obstructs or prevents a member of a Scheduled Caste or a Scheduled Tribe in any manner with regard to—
(A) using common property resources of an area, or burial or cremation ground equally with others or using any river, stream, spring, well, tank, cistern, water-tap or other watering place, or any bathing ghat, any public conveyance, any road, or passage;
shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine.
3(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,—
(vii) being a public servant, commits any offence under this section, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to the punishment provided for that offence.
The Act also provides for enhanced punishment in case of subsequent conviction and provides for minimum punishment of 1 year. Further under section 15A of the Act are rights of the victims and witnesses. Sub-section 2 clearly states that the victim “shall be treated with fairness, respect and dignity”. Under sub-section 11(d) it is also binding upon the State to “provide relief in respect of death”.
While these are adequate legal provisions in the Act, the Indian Penal Code has general provisions as well, that naturally apply to all. Here are some offences defined under IPC that seek to punish offences committed against the dead:
Section 404 of the IPC recognizes dishonest misappropriation of the dead man’s property as an offence. Further, section 499 of IPC which deals with defamation, stipulates that libel or slander against a dead person also constitutes the offence of criminal defamation.
Section 503 of the IPC which defines criminal intimidation, includes threatening a person with injuring the reputation of a dead person dear to him, as an offence.
Section 297 of the IPC, deals with the offence of trespassing on burial grounds etc., states that if any person offers any indignity to any human corpse, or causes disturbance to any persons assembled for the performance of funeral ceremonies, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both
International Law on the Rights around Human Remains
The United Nations Commission on Human Rights adopted a resolution in 2005 related to human rights and forensic science which underlined the importance of dignified handling of human remains, including their proper management and disposal as well as of respect for the needs of families.
Needless to say, such deeds of discrimination against a deceased and harassment of the surviving kin is tantamount to violation of fundamental rights under Article 14 (right to equality), Article 15 (prohibition of discrimination), Article 17 (abolition of untouchability) as well as Article 21 (right to life) and hence need some serious intervention of the courts especially in the light of increasing number of such incidents over the years, as is evident from the instances mentioned above.
The fact that Dalits are among India’s most marginalised and discriminated sections, the question is whether the police officers responsible for breaking the law will be punished.
In Pt.Parmanand Katara Vs. Union of India (1995 (3) SCC 248) the Supreme Court had observed thus,
“We agree with the petitioner that 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”
In Ashray Adhikar Abhiyan Vs. Union of India (AIR 2002 SC 554) the Supreme Court had 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.
In S. Sethu Raja vs the Chief Secretary, [2007 (5) MLJ 404] the apex court had commented, “By our tradition and culture, the same human dignity (if not more), with which a living human being is expected to be treated, should also be extended to a person who is dead”.
In August 2019, Madras High Court had taken suo moto cognizance of a news report about an incident whereby Dalits were denied right of way to the cremation ground and they were compelled to air-drop the body from a 20-feet high bridge, on the banks of river Palar. A division bench of Justices S Manikumar and Subramonium Prasad had directed the Collector of Vellor and Tahsildar of Vaniyambadi to explain why a place was ear marked separately for burial of Dalits, when all of them are Hindus.
As the courts have commented, right to life under Article 21 is to be interpreted and expanded for a deceased person as well. The right is so all-encompassing that it extends beyond the grave and seeks to ensure that the dead are also treated with dignity. This is not just a matter of an individual construct but what is to be considered also is the dignity of the kin survived after the deceased. Section 503 of the IPC (as mentioned above) does consider the effect of injury to the deceased upon the next of kin and this this construct can certainly be expanded to apply in all the provisions in law that are applicable to deceased.