[Breaking] Hathras Victim Was At Least Entitled To Decent Cremation; State Action Infringed Her Human Rights: Allahabad HC [Read Order]

"India is a country which follows the religion of humanity, where each one of us are supposed to respect each other in life and in death. However, the above facts and circumstances, as of now, ex facie, reveal that the decision to cremate the victim in the night without handing over the body to the family members or their consent was taken jointly by the administration at the local level and was implemented on the orders of the District Magistrate, Hathras. 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 Bench of Justices Pankaj Mithal and Rajan Roy observed.

The Court has directed the Additional Chief Secretary (Home) to come out with a draft policy by the next date of hearing, so that proper guidelines in that regard may be laid to avoid incidents of this kind in future.

After hearing the versions of both the parties, the Court was of a prima facie opinion that the administration had failed to show "any good reason" as to why they could not hand over the body to the family members for some time, "say for even half an hour, to enable them to perform their rituals at home and thereafter to cremate it either in the night or next day."

The victim's family told the bench that the midnight cremation was done despite their insistence for doing it in the morning and that none of the immediate family members participated in the midnight cremation.

The local administration on the other hand submitted that expeditious disposal of the body was necessary to prevent certain miscreants from giving this incident a political colour.

The Court noted that it was an admitted fact that the administration had not categorically refused the family members to see the face of the deceased victim however, it remarked that the fact remains that it was not shown to any of them in spite of their repeated requests.

"Thus, the expanded fundamental right to life to live with dignity and to exist with dignity even after death as well as right to decent burial/cremation appears to have been infringed hurting the sentiments of not only the family members but of all persons and relatives assembled on the spot," the Court observed.

It added,

"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. Cremation is one of the 'Sanskars' i.e., antim sanskar recognized as an important ritual which could not have been compromised taking shelter of law & order situation."

Thus, one of the crucial issues that has sprung up for the Court's consideration, apart from criminality which is under investigation by the police/CBI for the purposes of trial, is:

"Whether the hasty cremation of the dead body of the victim in the odd hours of the night without revealing her face to the family members and allowing them to undertake the necessary rituals in the absence of their consent and presence would amount to the denying decent cremation in gross violation of her fundamental/human rights as enshrined under Articles 21 and 25 of the Constitution of India. If so, who is responsible for the same so as to fix their accountability and liability and how the family of the victim be compensated for it."

For now, the Court has decided to examine two aspects in the matter:

First, whether there was any violation of fundamental rights of the deceased victim and her family;

Second, the larger issues involved in the context of such rights which are generally available to all residents of the State and even beyond it so that valuable constitutional rights are not compromised casually and whimsically.

"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 cannot be trampled or trifled casually or whimsically especially when those likely to be deprived are of the downtrodden class, uneducated and poor," the Bench observed while emphasizing that the case at hand would have wider ramifications on the public.

"The guiding principle of governance and administration, after independence, should be to 'serve' and 'protect' people and not to 'rule' and 'control' as was the case prior to independence. Government should come out with appropriate procedures as guidance for district officials to deal with such situations", the HC said.

Inter alia, the Court has directed the State administration to ensure the safety and security of the family members of the victim and 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, shall be kept in full confidence

Click here to download the order

.Read Order