Decades back, Justice Krishna Iyer set a precedent, when he took cognisance of letters written to him and converted them into Public Interest Litigation. On 1 October 2020, the Allahabad High Court comprising Justices Jaspreet Singh and Rajan Ray, in a rare move in contemporary times, took cognisance of the extensive reporting in The Indian Express of the enforced cremation of the brave Dalit girl who was brutally assaulted in Hathras in the Indian state of Uttar Pradesh, governed by BJP.  The court has ordered their observation to be converted into a Public Interest Petition against the errant police officers and the District Magistrate of the area.

THE ALLAHABAD HIGH COURT, TAKING COGNIZANCE PRIMARILY OF THE NDIAN EXPRESS REPORTS, in its order of 1 October said, “Today, we find ourselves constrained to take cognizance of an extremely sensitive and important matter touching upon the basic human/fundamental rights of the citizens of this country and residents of this State based on certain newspaper items and programs shown in the audio-visual media…….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.”

Referring to the dignity of the dead, the justices quoted poet 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.”

The judges have clearly and unmistakably stated that “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.”

Not stopping at blaming only the lower-run hierarchy of the police and listing the matter for 12 October 2020, the Allahabad High Court order has observed that, “The seat of governance being at Lucknow and the high Police Officials posted in the office of Director General of Police, U.P. at Lucknow having justified the cremation at night, we have taken cognizance of the matter.”

“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.”

Oscar Wilde

Appointing Senior Advocates Jaideep Narain Mathur and Abhinav Bhattacharya as Amicus Curie, the judges have ordered registration of 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 Public Interest Litigations. The news items referred above shall be kept on records of the proceedings. 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 shall be arrayed as opposite parties in the said Petition.

Expressing deep anguish, the judges have narrated that, “As per the newspaper items and electronic media reports, the dead body of the victim was taken to her native village but surprisingly and painfully enough it was not handed over to the family members so that the last rites of the deceased victim could not be performed as per prevalent customs and religious inclinations in a decent and dignified manner.”

We have taken note of a news reported in Indian Express, Lucknow edition dated 01.10.2020 with the headline ” U.P. Police out in full force to cremate Hathras women, away from family”.

Justice Jaspreet Singh and Justice Rajan Ray, Allahabad High Court

“As per newspaper items and electronic media reports, the cremation is said to have been performed forcibly and without the consent of the family members. However, certain officers of the State Government have given statements in the newspapers and electronic media that cremation was performed with the consent of the family members and they were present during it. The electronic media reports and news items published in newspapers have belied such statements made by the State Authorities.”

In a rare development in judicial activism, the judges have said, “In this regard, we have taken note of a news reported in Indian Express, Lucknow edition dated 01.10.2020 with the headline ” U.P. Police out in full force to cremate Hathras women, away from family”.

The exhaustive report of The Indian Express makes painful reading, but the judges have incorporated this in their order to narrate the disgusting manner and utter callousness and inhuman behaviour of the police and administration of the Indian state of Uttar Pradesh.

“As per the said report, the moment the body of the deceased victim left Delhi’s Safdarjung hospital at 9:30 PM on Tuesday to a hurried cremation in a Hathras village 200 kilometres away at 3:30 AM on Wednesday, it was marked by a disregard to protocol and high handedness by a Police force that did not let her family perform her last rites. According to the said report, the 19-year-old Dalit women died at 06:55 AM on Tuesday at Safdarjung Hospital where she had been shifted from Aligarh on Monday night as her condition had deteriorated consequent to the gang rape and other atrocities afflicted on her by the accused. After post mortem, the body was released and taken to Hathras in an ambulance. The family told the Indian Express, they were not informed, instead, accompanying the body in the vehicle was an Uttar Pradesh Police Constable apart from the driver. The father of the victim said “We had been waiting all day to take her home, do the rituals, the last rites. The Police did not inform us deliberately.”

“We had been waiting all day to take her home, do the rituals, the last rites. The Police did not inform us deliberately.”

The Dalit Rape Victim's father

The report further goes on to say that “even as the body was on its way, the District Authorities and Police started preparations at the woman’s village for a late night funeral. Logs of wood were arranged, lights of the cremation ground switched on and the road to the victim’s home heavily barricaded. The report also mentions a statement of the Superintendent of Police that the body was handed over to the family and the Administration only provided logistical support to transport the body and in fact, the father told him more than once that the time cremation was done, would not matter.”

However, the same report “mentions the statement of the father of the victim that “There was hardly any conversation on the way to the village, there was just silence; we were so overwhelmed.” The news report further goes on to mention that by the time the ambulance reached the village at least 3 layers of barricades had been put up between the main road and the victim’s home. When the ambulance stopped 100 meters from the woman’s home that is when the first flare-up took place between the local residents and the Officials.

The report mentions an official acknowledging on condition of anonymity that there were instructions to wrap up the cremation at night to prevent a “law and order” situation in the morning. The deceased victim’s brother is stated to have said that “The ambulance headed straight to the cremation spot. Her mother fell on their feet, the women from the family cried on the bonnet. They folded our hands.” Her mother said “Let me put haldi on her, let me take her home one last time” but no one heard then.

The report mentions the time 1:00 AM – 3:30 AM to state that the family refused to cremate the body and the District Authorities and Police Officer’s adamant, the conversation became heated. It then quotes the victim’s brother saying ” At one point, Police personnel got aggressive and pushed, kicked some relatives who were trying to intervene. That’s when we became so scared that we locked ourselves in. We were afraid we would be lathi-charged.” The brother added that all of them stayed inside, his parents, brother, sisters and other relatives. For 2 hours they were not even sure that their sister had been cremated.

The report then mentions the presence of the District Magistrate Praveen Kumar Laxkar and S.P., Hathras, Vikrant Vir as also Additional SP Prakash Kumar, Sadabad Circle Officer Bhram Singh, Ramshabd Circle Officer, City, Surendra Rao, and Circle Officer Sikandarao and Joint Magistrate Prem Prakash Meena besides 200 personnel of the PAC and forces from 11 Police Stations of the area. The report records a contrary version of the District Authorities referring to a video of three men throwing wood into the fire to counter the claim that the family members were not involved in the cremation. However, one of the men in the video, the woman’s paternal uncle, told The Indian Express that he had been “coerced” to attend.

The exhaustive report of The Indian Express makes painful reading, but the judges have incorporated this in their order to narrate the disgusting manner and utter callousness and inhuman behaviour of the police and administration of the Indian state of Uttar Pradesh.

The 40-year-old said that “We were outnumbered by the police… They said we have to attend; they didn’t give us an option. We were scared. If they wanted to include family members, they could have allowed the brother and father, but they chose who they wanted.” The report also mentions the deceased victim’s father saying that he was under the impression that his assent was asked only for the post mortem and for the body to be released from the hospital.”

The report refers to a statement given by the Additional Director General (ADG), Law and Order, Shri Prashant Kumar to the media at Lucknow that “The cremation was done in the presence of family members and with their agreement… The body was decomposing and that is why the family members agreed that cremating it late at night itself would be better.”

The report mentions the time 3:30 AM to state that still afraid to leave their home, the girl’s brother told The Indian Express “It appears my sister has been cremated, the police aren’t telling us anything. Why are they doing this?”

“It appears my sister has been cremated, the police aren’t telling us anything. Why are they doing this?”

The rape victim's brother

The judges have also quoted similar reporting from Hindustan Times Lucknow edition and Hindi daily Amar Ujala Lucknow edition of the same date. They have also alluded to the India TV channel program “Aaj ki Baat” where the anchor Shri Rajat Sharma dwelled on the issue of alleged forcible cremation of the deceased victim at length and in the said program videos which were recorded on the spot at the time the deceased victim’s body arrived in the village and her cremation indicating the forcible cremation without the family members being allowed to participate, that too, in the midst of the night contrary to the religious practices followed by the family, have been shown. The family members were shown as stating that cremation is not carried out after sunset and before daybreak and that the body of the deceased should be taken to their home, but this was not done.”

Citing a 1995 Supreme Court order in Pt. Parmanand Katara Vs. Union of India (UOI) and Others, Justice Jaspreet Singh and Justice Rajan Ray reiterated 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.”

The judges further said, “It being the legal position, the deceased victim after her death was entitled to honourable, decent and dignified last rites/cremation to be performed by her family members in keeping with the customs and traditions followed by the family which as per the electronic media report was a follower of Sanatana/Hindu traditions, which, as alleged, was not allowed.”

The judges also referred to a similar 2009 decision of the Division Bench of the Allahabad High Court in the case of Ramji Singh @ Mujeeb Bhai Vs. State of U.P. and others.

Posing a plethora of questions, the judges are looking to examine, “as to whether there has been a 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 a case where accountability will not only have to be fixed but for future guidance also stern action would be required.”

“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. We would like to examine as to whether the economic and social status of the deceased’s family has been taken advantage of by the State Authorities to oppress and deprive them of their Constitutional rights?”

Coming down heavily on the police, the judges have ordered the entire top hierarchy of the UP police to be present in the High Court on 12 October. To know the details first-hand, the family of the deceased have also been summoned.

Coming down heavily on the police, the judges have ordered the entire top hierarchy of the UP police to be present in the High Court on 12 October.

“On the said date the Additional Chief Secretary/Principal Secretary (Home), Director General of Police, U.P. Lucknow, Additional Director General, Law and Order, U.P., District Magistrate, Hathras, Superintendent of Police, Hathras shall appear before this Court and put forth their version with support of requisite material. They shall also apprise the Court about the status of the investigation relating to the crime against the deceased victim.”

Similarly, to get a first-hand version of the events as they unfolded, the judges have also “directed the family members of the deceased victim i.e. the father, the mother, brothers and sisters shall also be present before this Court so that this Court ascertains the facts and their version of the incidents which took place at the time of cremation.”