[Hathras Case] The Guiding Principle Of Governance and Administration Should Be To ‘Serve’ And ‘Protect’ And Not To ‘Rule’ And ‘Control’ Allahabad HC

(Judicial Quest News Network)

The Allahabad High Court (Lucknow Bench) on Monday pulled up the Utter Pradesh authorities for their decision to cremate the Hathras rape victim at without the family members consent, or handing over the body to them.

Expressing the displeasure over the denial of the fundamental right of a decent cremation on the victim’s body was done without their (Family members consent)

The decision to cremate the victim in this manner was taken jointly by the administration at the local level and was implemented on the orders of the District magistrate, Hathras, a bench of Justice Pankaj Mithal and Rajan Roy observed.

“The dead body of the girl after post-mortem at Delhi itself was brought to her village Bul Garhi in Hathras on 29.9.2020 itself in the dead of the night around 2.00 a.m. in an ambulance and was cremated by the police administration between 2.30-3.00 a.m. in the intervening night of 29/30th September, 2020.”  (Allahabad High Court.)

Apart from the criminality of the incident, which was under investigation, the High Court remarked that it needed to consider whether the hasty cremation of the victim at odd hours was in gross violation of her fundamental rights enshrined under Article 21and 25 of the Constitution of India.

It was cremated with the help of some other persons. Moreover, 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 day break.

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 High Court also emphasized,

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.

Thus, the Additional Chief Secretary (Home) has now been directed to come out with a draft policy containing guidelines for district official to be following in the future in matters involving cremation/burial of the dead in similar circumstances with which we are concerned.

The State administration is directed to ensure the safety and security of the family members of the victim so that no harm is caused to them. It is further provided that the inquiry/investigation which is being carried-on in the matter, either by the S.I.T. or by any other agency such as CBI, be kept in full confidentially and no report or post thereof is leaked out in the public.

Without in any manner intending to interfere with the right of freedom
of expression, we request the media as also the political parties to air their
views in a manner which does not disturb social harmony and/or infringe
upon rights of the victim’s family and that of the accused. No one should
indulge in character assassination of the victim just as the accused should
not be pronounced guilty before a fair trial. The investigating agency and the Courts should be allowed to determine these issues.

The State is said to have announced some payment of compensation to
the family of the deceased which probably is not acceptable to them as one
of them stated that compensation is of no use, nonetheless, we direct that the compensation so announced by the State may be offered to the family at the earliest and in case they deny or refuse to accept the same, 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 may be directed by the Court.

Sri J. N. Mathur, Senior Advocate alongwith Sri Abhinav
Bhattacharya have appeared as amicus curiae. Ms. Seema Kushwaha,
Advocate has appeared for the family of the victim. Ms. Aishwarya Bhati,
Senior Advocate assisted by Sri Vinod Kumar Shahi, Additional Advocate
General and Sri Manish Mishra, learned Standing Counsel have appeared for the State.

The State through Sri Manish Mishra, learned Standing Counsel has
filed an affidavit of one Rajendra Pratap Singh, posted as Special Secretary