Allahabad HC: UP Police violated human rights in Hathras rape case

The court emphasised that there was no good reason on behalf of the administration for cremating the body immediately, UP police actions were in violation of the victims fundamental rights

On Monday, the Allahabad High Court chastised the UP police for cremating the Hathras rape victim at odd hours without the consent of the family, and barring them from giving her a respectful funeral. The bench made clear that this was a human rights violation against the victim and her family. 

High Court: UP Police’s Actions in violation of Constitutional Rights and IPC

While hearing the suo motu case registered on October 1, the bench noted that the administration at the local level was given the order to do so by the District Magistrate. Bar and bench reports that Justices Pankaj Mithal and Rajan Roy observed:

“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.”

hathras police burn body
Police burnt the body against the wishes of the family, and barred them from coming to the cremation. This is in violation of fundamental rights

The District Magistrate claimed they made the decision in the interest of maintaining law and order. He stated that the state was on high alert as the Babri Masjid verdict was upcoming, and there were interest groups who wished to politicise the Hathras incident.

However, the court was skeptical of this motivation and emphasised that there was no good reason on behalf of the administration for cremating the body immediately, instead of handing over the body to the family to pay their respects and perform rituals. They said this was in violation of the victims fundamental rights as enshrined under Articles 21 and 25 of the Constitution of India.

“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.”

victim's family
The victim’s family pointed out that there were enough police officers deployed so it wouldn’t have become a “law and order issue”

The Court also questioned the UP Police and States claims based on the lack of semen found in the forensic examination, pointing out that according to the law the “mere absence of semen during forensic examination…would not by itself be conclusive as to whether rape had been committed or not” 

The matter will be next heard on November 2.

Instructions for the future

up police hathras Avnish Awasthi
Avnish Awasthi, additional chief secretary (Home) to draft new policy on code of conduct for such cases

The court directed the Additional Chief Secretary (Home) to produce a draft policy containing guidelines for district officials to be following in the future in matters involving cremation/burial of the dead in similar circumstances.

Per the family’s wises, the bench also directed that their safety is ensured by the state, that the investigations carried out be kept confidential, and no post to be leaked to the public; previously, the CBI had accidentally leaked the investigation file online, though her name was hidden. Officials also are barred from making statements, to avoid unnecessary public speculation.

The court also directed the State to give any necessary compensation to the family as soon as possible.

PIL against UP Police & State in Supreme Court under SC/ST (Prevention of Atrocities) Act

With regard to the concerns raised by the High Court, a fresh PIL has been filed against the concerned officials before the Supreme Court for committing penal offences as well as those under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act.

The PIL was filed by social activist Chetan Janardhan Kamble, drawn by Advocates SB Talekar and Karthik Jayashankar, and filed through Advocate Vipin Nair.

It accuses police officials, hospital staff and medical officers and other government officials who were complicit or directly involved in “destruction of evidence” and “shielding of the accused”. The PIL urges the Supreme Court to take swift action against those involved.

“…the very people Constitutionally assigned with the obligation of maintaining the rule of law are involved in covering up this heinous crime committed against a woman of lower caste.”

Firstly, despite clear visual signs that a sexual offence has been commited against her, the government hospital did not collect requisite swabs and other samples. The PIL points out that the forensic evidence- where no semen was found- was taken too late and therefore taints evidence in favour of the accused.

Petition also states that the statements made b high ranking officials denying accusations before the investigation concluded “indicates a clear nexus between the State Police and the accused.”

The PIL also critiqued the midnight cremation conducted by the UP police for violating fundamental rights.

Therefore, the petitioner hold that officials- regardless of their position of power- should be tried under Sections 166-A, 193, 201, 202, 203, 212, 217, 153-A and 339 of the Indian Penal Code as well as offences under section 3 (2) and 4 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act.

The petitioner also requested the SC to direct an investigation by an independent and unbiased special task force. The CBI investigation and Yogi Government has been accused of bias by politicians as well the victim’s brother.

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