"Consider Relocating Hathras Victim's Family Members Within State, Providing Govt Job To 1 Family Member": Allahabad HC Directs UP Govt

The Allahabad High Court has directed the Uttar Pradesh Government to consider giving employment of one of the family members of the Hathras Gang rape Victim under the Government or Government Undertaking commensurate with the qualification possessed by them.

The bench of Justice Rajan Roy and Justice Jaspreet Singh further directed the government to consider their relocation to any other place within the State outside Hathras keeping in mind their social and economic rehabilitation and also the educational needs of the children.

The Court noted that after the Hathras Rape incident happened, it hogged in newspapers and social media, etc., and therefore, the Court added, one can very well imagine that it would not be easy for the family to live in a village Boolgadhi (district Hathras).

"It is not too much for the family to ask for relocation outside Hathras in the circumstances in which they find themselves wherein their movements are highly restricted on account of their security by the CRPF and also on account of the alleged hostile behaviour/attitude of the other villagers who belong to the upper caste," the Court added.

The Court also took into account the fact that none of the male members of the victim's family is employed as of now as a consequence of the atrocity committed against them.

The case in brief

These directions have been issued by the bench which was hearing a Suo-Moto case instituted over the Hathras Rape and Cremation case to examine the right to decent and dignified last rites/cremation.

The Court had taken cognizance of the rape of a 19-year-old girl belonging to the SC community followed by her cremation in the wee hours of the night intervening 29/30 September 2020 which appeared to be against the wishes of her family members.

The Court had noted that these incidents had raised important questions pertaining to the fundamental right to a decent burial and the role of State authorities in this regard.

In these very proceedings, the victim's family had claimed employment for one of its members i.e. the elder brother in view of Item 46 of Schedule Annexure-I referable to Rule 12(4) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 and Section 15A of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, and the assurance given to it on 30 September 2020 by the Head of the State which has been recorded in a document of the same date.

The family had also claimed relocation as per the provisions of the Act 1989 considering the inimical condition in its village.

State's submissions 

The Government of UP submitted before the Court that the benefits prescribed under Item 46 of the Schedule Annexure-I to the Rules 1995 are not mandatory. It was also submitted that the employment referred in Item 46 of Schedule Annexure-I to the Rules 1995 was only with respect to 'dependents' of the victim or widow which the family members were not.

It was also submitted that the assurances (of providing employment) recorded in the minutes dated 30.09.2020 are contrary to the provisions of Rules 1995 and are not enforceable in a Court of law.

The Counsels for the State suggested that the Government could arrange private employment to one of the members of the family, however, when the Court asked as to how the State will arrange private employment, it was submitted that after the conclusion of the trial the State is agreeable to consider the grant of employment to one member of the family.

Lastly, the UP Government also opposed the redressal of the grievance of the family members of the hathras rape victim as it was submitted that these proceedings, being in the public interest, cannot be used by the victim's family for redressal of their individual grievance.

It was contended that the jurisdiction, if at all in this regard, is with the Special Court under Section 15A (6) of the Act 1989, therefore, this Court should not consider this issue.

Court's observations 

At the outset, the Court noted that the Court has initiated suo moto proceedings on account of the fact that the victim and her family belong to the downtrodden class of the society i.e. they were from the socially and economically weaker section of the society, poorest of the poor, who have been given certain protections by the Constitution and also statutorily by the Act 1989.

"...such persons are often not in a position to raise their grievance or assert their rights for various reasons including their unawareness and their social, educational and economic status," the Court observed.

Further, analyzing Act 1989 and the Rules made thereunder, the Court came to a firm conclusion that the victim's family has a legal basis for its claim of relocation and job. Further, rejecting the argument of the state that the provision of employment in such a case would violate Articles 14 and 16 is without any constitutional and legal basis, the Court held thus:

"We have already held that the family members of the deceased are 'victims', therefore, one of the family members is entitled to employment and it is on account of this that the Head of the State assured employment to one of the family members on a Group 'C' post as is recorded in the document dated 30.09.2020 which we have quoted hereinabove. This document is signed by the District Magistrate and various other public authorities. The father of the deceased has also signed it. We have already held that the said assurance and the document dated 30.09.2020 is not contrary to the provision of the Act 1989 and Rules 1995, especially Item 46 of Schedule Annexure-I to the Rules 1995, because such an act has statutory backing and there is a rationale behind it i.e to provide relief and rehabilitation to the family of the victim which belongs to SC/ST which is in furtherance of the object of the Act 1989...The only other source of income available is one and half bigha land in their possession, therefore, clearly a family which comprises of nine members with three children who in the days to come will go to school, does not have adequate means of sustenance. Clearly the family is in need of employment and that is why the same was promised by the Head of the State. The promise is not based on any whims or fancy, but it is referable to statutory provisions and the Rules made thereunder..."

The Court also noted that the offer of a private job to the victim's family was something that was not expected from the State Government and absolutely uncalled for. Now, so far as the claim for relocation of the family members was concerned, the Court said that the provision for it existed in Section 15-A (6)(d) and Rule 15 (aa),(b), and (c) of 1989 Act.

The Court also took into account the fact that the majority of the population in the village belongs to the upper castes and it is stated that the family is always targeted by other villagers and even after being under the security of CRPF whenever the family members go out, they are subjected to abuse and objectionable comments in the village.

In view of this, considering the social and economic condition of the victim's family as also the mental state in which the family members claim to be, which, the Court noted, was not improbable in view of the social strata to which they belong and the demography of the village, therefore, the Court was of the opinion that the State should consider their relocation to any other place within the State outside Hathras keeping in mind their social and economic rehabilitation and also the educational needs of the children.

The Court further gave 6 months to the state government to take a decision in this respect as the Court noted that the area of relocation has to be socially conducive to the family members apart from being conducive to their economic and educational rehabilitation, which would take some time.

The Court also asked the District Magistrate, Hathras to look into the request by the family members on a representation regarding reimbursement of traveling and maintenance expenses to witnesses, including the victims of atrocities, during the investigation and trial of offences under the SC/ST Act.

Case title - Suo-Moto Inre Right To Decent And Dignified Last Rites/Cremation v. State Of U.P. Thru Additional Chief Secretary Home And Ors.

Citation: 2022 LiveLaw (AB) 342

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