People who died of the plague or some other contagious disease were carried out of the village and their bodies were burnt without the dignity of a proper cremation. This indignity to our loved ones was accepted as a public health necessity. But Wednesday night, when images streamed in on social media and news channels, of a sobbing mother in Hathras being denied her young daughter’s body, followed by the images of police personnel, deployed in full force, burning this young girl’s remains, without any right in law, in a lonely field outside the village, it was an injustice that was morally and legally too much to bear. It was a reminder of a time when, in this country, a person relegated by oppressors through the unscientific and inhuman caste system as an untouchable, could be treated as worse than animals are — with social and legal impunity.
A young woman, only 19 years old, hailing from the Valmiki community, was denied the promise of the Constitution of India of equality before the law and equal protection of the law, in both life and death. Ironically, she may have had a better chance of justice in British India, because all Indians were unequal to the coloniser and yet equal to each other as their subjects. Sadly, the Constitution which we the people of India chose to rid ourselves of caste and communal plague is being flouted brazenly.
The sequence of events that saw the unforgivable forced burning of the body of the young woman in Hathras is as horrifying as the end that she met. As per media reports, the mother of the victim described how she had found the body of her daughter on September 14: “My daughter was lying naked with her tongue protruding from her mouth. Her eyes were bulging out and she was bleeding from her mouth, her neck and there was blood near her eyes. I also noticed bleeding from her vagina. I quickly covered her with the pallu of my saree, and started screaming.” It was further reported that the brother and mother drove the victim to the Chandpa police station on their motorcycle and the brother alleged that “the police kept saying, ‘Just take her from here’.” The family took the victim in an ambulance to a local hospital where she was kept for two hours before being referred to the Jawaharlal Nehru Medical College and Hospital, Aligarh. Statements by Dr Shahid Ali Siddiqui, principal of the JNM College and Hospital, in the media, reportedly stated that “due to spinal cord damage, the victim was suffering from quadriplegia”, meaning complete paralysis in all four limbs. And the injuries on her neck, he added, were causing her “breathing problems”. Thirteen days after the victim had been admitted to the hospital, the doctor said that they were yet to confirm if sexual assault had taken place. “The girl is serious but we cannot confirm sexual assault as of yet. A sealed report from our end has been sent to the district administration”. According to an article published in The Indian Express, the four upper-caste men, charged with gang rape and attempt to murder, apart from charges under the SC/ST(Prevention of Atrocities) Act, were arrested on a statement given by the victim on September 23, after she briefly regained consciousness. There is no explanation for the nine-day delay. On September 29, the victim succumbed to her injuries at Safdarjung Hospital, where, as per the media reports, the family states she was taken without their consent.
The question of whether it is obligatory for the police to register an FIR on information given by an informant has been answered in the affirmative by the five-member bench of the Supreme Court in Lalita Kumari v. Govt. of U.P. It has been categorically ruled that the provisions of Section 154(1) CrPC are mandatory and the officer concerned is duty-bound to register the case on the basis of information disclosing commission of a cognizable offence.
The Criminal Law Amendment Act, 2013, emphasises examination as well as treatment of the victim, both physical and psychological, in addition to mere evidence collection. As per MOHFW guidelines, it is mandatory for a doctor to inform the jurisdictional police (local police station) regarding a case of sexual violence, unless the survivor does not give consent, in which case such fact is written on the MLC by the examining doctor. The victim should have been taken for medical examination immediately and an MLC would have clearly stated all the injuries on the person of the victim, which then could have directed the sections to be added in the FIR and guided further investigation. However, in the present case, the ambiguity as to whether or not there was sexual assault, does not seem to inspire confidence in either the investigators or the doctors.
As if it wasn’t bad enough that the entire investigation of the dastardly violence against this young Dalit woman had been compromised, and her health and medical condition had been neglected, the actions of the UP police officials after she passed away seem unfathomable. The same police force which had till now not had enough manpower to lodge a timely FIR, or to take the victim to the hospital, or to ensure timely collection of medical evidence, emerged in full force to lock up her family members, deny them the body of their daughter without any legal right to do so, and carried her body to the wilderness to be burnt in the middle of the night. Not only is this action completely without the sanction of law, but its haste and timing also create further suspicion that it was done to suppress the medical evidence of sexual assault. Seeing the keepers of the law conduct themselves in a manner that appears inhuman and illegal, with impunity, has a chilling effect on the law-abiding citizens, especially women, while simultaneously no doubt emboldening the “anti-social elements” to view themselves as above the law.
As citizens of India, when we gave ourselves our Constitution, we cast upon our judiciary the duty to protect our fundamental rights against any encroachment from the executive, irrespective of the religion we espoused or the caste forced upon us. And today, as we stand shaken and humiliated by the brazen inhumanity perpetrated on the most vulnerable of Indians in complete violation of the rule of law, we hope that our judiciary will exercise its immense constitutional power to lead and supervise a free, fair and speedy investigation into the heinous allegation of brutal rape and the completely illegal forced cremation and illegal detention by the UP police. All Indians today need to be reassured that our Constitution, its spirit, and the idea of India it promised to us all, is protected by the bravest and the mightiest.
This article first appeared in the print edition on October 2, 2020 under the title ‘In the mirror of Hathras’. The writers are lawyers practising at the Delhi High Court.