Hathras rape and murder case: Judiciary must find way to fix responsibility when State is at fault

It’s been a week since the dead body of a young girl belonging to a Scheduled Caste, who was the victim of a barbaric crime of rape and murder in Hathras, Uttar Pradesh, was unceremoniously burnt by the district administration against the will and without the consent of her family. In my last piece, I had written about how the jurisdictional police and the District Collector could be criminally held liable. In this article, I’m attempting to discuss the further course of action that could be taken to provide justice to the victim and issues connected therewith or incidental thereto.

A Special Investigation Team (SIT), headed by the Uttar Pradesh home secretary, was formed by the state government. On the evening of 2 September, the Superintendent of Police (SP), the Deputy Superintendent of Police (DySP), concerned station inspector and some other police officers at Hathras were suspended by the state government based on the preliminary findings of the SIT. Meanwhile, the Allahabad High Court has suo motu taken cognisance of this case and stated “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 motu cognisance of the same.”

The court seeks to examine if there has been inter alia (i) gross violation of the fundamental rights of the deceased victim and her family members (ii) if the state authorities have acted oppressively, high-handedly and illegally to violate such rights and if it is found to be so, it would be a case where accountability will not only have to be fixed but for future guidance also stern action would be required. The court also noted that “the matter is of immense public importance and public interest as it involves the allegation of high handedness by the State authorities resulting in violation of basic human and fundamental rights of the victim and her family members. It further 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.”

Meanwhile, the District Collector has been caught on camera talking to the family members of the victim where he says, “Half of the media people have left today, the other half will leave by tomorrow. Only we will stand with you. It is your wish whether you want to change your statement or not.” Does this act by the District Collector not amount to criminal intimidation? If yes, is he then not to be held liable under Section 506 of the Indian Penal Code (IPC)?

As I’ve already explained before, the actions of the District Collector attracts multiple provisions of the IPC, the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities Act, 1989 (as amended) (POA Act) and the Protection of Civil Rights Act, 1955 (PCR Act). And this veiled threat falls under Section 503 of the IPC. This being the case, why is he still not suspended and why has the FIR not been filed against him?

Coming to the suspension of the concerned police officers, I’m of the opinion that suspension cannot be seen as punishment.

It is only an administrative action by the present dispensation at the State level, which might have been taken to cool down the public outrage. As I have asked before, why were the FIRs not filed against the jurisdictional police officers, under multiple sections of the IPC, POA Act and PCR Act for their criminal acts?

Since one can presume that police can’t suo motu take action to burn the dead body of the victim of an atrocity, when the District Collector was present on the spot, they must have taken orders from the District Collector to do the same. This can be classified as a ‘crime’ and/or an ‘atrocity’ which can also be punished under Section 4 of POA Act as well as destroying evidence which is considered to be essential to prove that rape and murder has taken place.

In this case, without bringing the District Collector and the police officers including the SP and DySP who have already been suspended, to book, under multiple sections including Section 4 of the POA Act, as well as Sections 201, Sec. 166 and 166A of the IPC read with Section 34 of the IPC, justice cannot be ensured. We must note that it is not just about how justice is done but it must also be about how it appears to be done. If the present dispensation at Lucknow thinks that the district police officers have taken decisions on their own without the orders of the District Collector, then one can conclude that it is a police raj that does not care for civil administration.

Since law and order is the primary jurisdiction of the District Collector in the district, the police cannot bypass him. If he has been bypassed, the question then arises, of whether the District Collector has officially informed the home secretary and the chief secretary regarding the abuse of power by the Superintendent of Police and other police officers, on time? And has he requested the state authorities for special force/additional force to deal with the unusual situation?

Now, it is learnt that the state government has filed an affidavit before the Supreme Court of India in which it is stated that, the government has received intelligence inputs alerting that, there will be “large scale violence” the next morning. Does it mean that the state government has admitted in the Supreme Court that it is incapable to handle such incidents? Is it the incapacity of the government which has forced them to destroy the vital evidence required for the prosecution to provide justice to the victim and her family instead of preventing people likely to come to the village from elsewhere? And if at all we have to believe the affidavit filed by the state government as a reflection of the actual situation, why then were the senior police officers like SP, DySP and others suspended by the state government?

Narco-analysis test

It has been alleged by the Uttar Pradesh state authorities that the victim had given three statements during her treatment and that initially she did not mention rape and mentioned only molestation. Further, the forensic reports have not confirmed rape. The veracity of these statements is questionable, since the victim may not have even understood what rape and molestation constituted, as mentioned by her brother in an interview who said she was not very literate to understand the word 'rape'.

Additionally, there was undue delay in conducting her medical examination contrary to the procedure in cases of rape, due to which the results might have emerged the way they did. The issue we are discussing here is this: due to the alleged contradictory statements by the victim, whether the Uttar Pradesh state government can order a polygraph and narco-analysis test of the police officers as well as the family members of the victim.

The preamble to the POA Act clearly states its objectives that inter alia it is a legislation enacted to prevent the commission of offences of atrocities against the members of Scheduled Castes and Scheduled Tribes and for the relief and rehabilitation of the victims of such offences. As per Section 2 (1) (e c) of the POA Act, it is clear that the victim’s family in the case at hand, falls under the definition of “victim”. This in turn implies that Chapter IVA of the POA Act which deals with the rights of victims and witnesses applies to the victim’s family. It is the duty and the responsibility of the state to make arrangements for the protection of victims, their dependents and witnesses against any kind of intimidation or coercion or inducement or violence or threats of violence (Section 15 (1) of the POA Act). But what has happened in this case?

As mentioned above, the District Collector himself was issuing veiled threat to the victim’s family.

A victim should be treated with fairness, respect and dignity and with due regard to any special need that arises because of the victim’s age or gender or educational disadvantage or poverty (Section 15 (2), POA Act). This being the case, how is it legal to conduct narco-analysis or polygraph tests on the victim’s family, who are victims as well under the said Act?

Over the years, the courts have questioned the conduct and admissibility of narco-analysis and other scientific tests on accused, suspect or witnesses (Selvi and Others versus State of Karnataka, (2010) 7 SCC 263). Looking at the victim’s family, who have lost their young girl to a heinous crime, in this case, on par with the accused itself is atrocious. In fact, the victim’s family is being treated worse than the accused (of rape and murder). Conducting of narco-analysis and/or polygraph tests on the victim’s family is not legally tenable.

This leads us to the next important question, conducting narco-analysis on the police officers and the District Collector. One of the major defences against these tests is that it is violative of the fundamental right against self-incrimination. Article 20 (3) of the Indian Constitution embodies this right when it states that, “no person accused of any offence shall be compelled to be a witness against himself”. According to Article 12 of the Indian Constitution ‘State’ includes inter alia “all local or other authorities within the territory of India”.

Going by this definition, the jurisdictional police officers and the District Collector who are the instrumentalities of the State are by extension, State itself. They are governed by the service rules and laws. When they have decided to burn the dead body of the victim against the will and without the consent of her family, they were not acting in their individual capacities. They were performing the said actions in their official capacities as District Collector, SP and as other police officials and not as individuals.

While I totally concur with the 2010 Supreme Court ruling in Selvi that no individual should be forcibly subjected to any of the techniques in question (including narco-analysis) whether in the pretext of investigation in criminal cases or otherwise and that narco-analysis test goes against the right against self-incrimination of a person,  it must be noted that the right against self-incrimination is a right conferred upon a ‘person’. It is important to make a distinction between a person and the State. The distinction between a person and the State is made in many legislations including the IPC and the POA Act. Section 22 of the POA Act states that no suit, prosecution or other legal proceedings shall lie against the Central government, the state government or any officer or authority of government, or any other person for anything that is done in good faith or intended to be done under this Act, meaning the bona fide intention of the State is presumed.

Another example in this context would be an attack on the police officers being taken to mean an attack on the State. But what happens when the State itself commits an ‘atrocity’ or a ‘crime’? If and when those at helms of affairs protect those instrumentalities of the State, how then will justice be served to the people? In the case at hand, it is the instrumentalities of the State which have gone ahead and burnt the dead body of the victim, thereby not only violating her fundamental rights guaranteed under Articles 21 and 25 of the Indian Constitution but also destroying the evidence of a gruesome crime. How will they be brought to justice? How can the State be held accountable under the law?

If a narco-analysis test is indeed to be performed on the jurisdictional police officers and the District Collector, it will be done on them in their capacities as the authorities/agencies of the State and not as individuals.

Going by what I have stated above, this should be seen as distinctly different from conducting narco-analysis test on a ‘person’ (accused in a case or otherwise). That is to say, the right against self-incrimination will not apply, because Fundamental Rights guaranteed under the Constitution do not apply to the State, rather it is guaranteed to persons against the State.

This becomes particularly important in the contexts like that of Hathras rape and murder case. When the instrumentalities of the State have destroyed the evidence, the dead body of the victim of rape and murder, for whatever reasons, they cannot merely be booked under Section 4 of the POA Act. The crimes of rape and murder, depending on the severity, both are punishable maximum by death. When the authorities destroy such crucial evidence, how can they be booked only for wilful neglect of duties? It is important to know why they did it. This is where Sections 3 (2) (vi) and (vii) of the POA Act come into play.

But more importantly, when the State discharges its duties through individual officers/staff in a caste-ridden society like India, if they are biased, what will happen to dispensation of justice and rule of law? As I have mentioned in my earlier article, when the prosecution/State itself is accused of the crime or has deprived the rights of the people, who will fight for the victim? How does one bring out the truth without compelling the officers working for the State to undergo tests like narco-analysis? There needs to be a comprehensive debate on this issue.

The judiciary must explore ways and means to fix accountability on the State when the State itself is at fault in cases such as these, in order to meet the ends of justice. This incident has given the judiciary yet another opportunity to instil confidence among the people that it is the ultimate custodian of their rights and ensure justice to the needy. In this case, it appears like the State itself is making a mockery of rule of law.

The author is a research scholar at Lancaster University, UK

from Firstpost India Latest News https://ift.tt/33IAac7
Preethi LN