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Synopsis

In the suo moto case pertaining to the Hathras gang rape incident (In re: Right to decent & dignified last rights/cremation), the division bench of Justice Rajan Roy and Justice Jaspreet Singh has tabled its decision. 

Court was primarily dealing with the claims made by the victim girl's family pertaining to the reliefs under various schemes provided for the prevention of atrocities against Scheduled Castes and the Scheduled Tribes and which were also promised to them by the head of the state. 

Victim's family, which belongs to a Scheduled Caste, had claimed employment for one of its members i.e. the elder brother of the deceased girl in view of Item 46 of Schedule Annexure-I which is 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.

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

Submissions on Behalf of the Victim's Family:

In nutshell, it was submitted by the counsel for the victim's family, Advocate Seema Kushwaha that the Head of the State i.e. Chief Minister had given certain assurances with regard to employment, etc. to the victim's family in September 2020, after the incident that took place on September 14, 2020.

She informed the court that the monetary benefit as promised (Rs 25 Lakhs) has been extended but the employment part has not been complied.

She informed the court that the father, the elder brother, who was earlier employed in Ghaziabad and the younger brother of the deceased, all are unemployed presently. 

She asserted that Chief Minister's assurances were reduced in writing and were singed by the District Magistrate and various other Public Authorities, therefore, the State is under an obligation to provide the benefits assured therein which are referable to statutory provisions.

She further told that the atmosphere in the village, where the family consisting of 9 members currently resides, is very hostile and the family has been subjected to economic and social boycott.

In spite of the CRPF personnel being posted therein, it is not possible for the family to lead a normal life as such they need to be relocated/rehabilitated elsewhere so that they may feel socially, and economically secure, she contended. 

Moreover, she apprised the court about a Mahapanchayat having been called by Karni Sena, an organization of upper caste people, in favour of the accused that allegedly further aggravated the situation and added to the fear of the victim's family which belongs to the downtrodden class.

Submissions on Behalf of the State:

Senior Counsel appearing for the State of UP, S.V. Raju informed the court that the offer of a house constructed by the District Urban Development Agency within the municipal limits of Hathras was turned down by the victim's family.

On the legal points involved in the matter, he argued that the benefits prescribed under Item 46 of the Schedule Annexure-I to the Rules 1995 are not mandatory as is evident from the use of the word 'may' in Column 3 of Item 46.

He contended that 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.

"The word 'and' used in Clause (i) of Column 3 of Item 46 is conjunctive, not disjunctive", he submitted. 

Further, he argued that only needy persons could be given the additional relief envisaged in Item 46 and it cannot be claimed as a matter of right as it is not supposed to be a bounty.

Furthermore, regarding the assurance given by the Chief Minister, he asserted that the assurances were contrary to the provisions of Rules 1995 and are not enforceable in a Court of law.

Submissions on behalf of the Amicus Curiae:

Senior Advocate J.N. Mathur, amicus curiae, assisted by Advocate Abhinav Bhattacharya, argued that the term 'victim' in the various provisions of the Act 1989 and the Rules 1995 includes the dependent and non-dependent.

Stressing that there is no reason to give a restrictive meaning to the term 'family' used therein, he submitted that the assurance given on 30.09.2020 was within the purview of the Act 1989 and the Rules made thereunder.

He asserted that family members are victims within the meaning of Section 2(ec) of the Act 1989, therefore, they are entitled to employment and also for relocation.

Further, stating that the relief being sought by the victim's family, which belong to downtrodden Schedule Castes and are the poorest of the poor, cannot be said alien to the subject matter of the instant suo moto PIL, Senior Counsel contended that this issue should not be treated as an adversarial issue by the State.

Court's observations:

Refuting State counsel's claim that the family of the victim could not claim abovesaid rights in the instant PIL, Court held that they are seeking constitutional and statutory protections and reliefs as perceived by them, and the court had taken suo moto cognizance of the matter in public interest, considering the social, educational and economic status of the victim and her family and the incident,  therefore, there is no reason to not consider their claims.

Stressing that despite various measures to improve social-economic conditions of the Scheduled Caste and Scheduled Tribes, they remain vulnerable, Court said, the Act of 1989 not only encompasses the trial of non-SC/ST accused for atrocities against SC/ST but also takes care of relief and rehabilitation of the victims.

Pointing out that the term 'relatives' used in the Act of 1989 has not been defined, Court held that "it has been used to give a wide meaning to the word 'victim' so as to advance and achieve the Object of the Act, which is to provide relief and rehabilitation to the victims which includes the family members of the deceased victim."

"A narrow view as to the meaning of the term 'relatives' would defeat the purpose of the Act," Court observed.

Accordingly, Court held, "There is no reason why we should give a restrictive meaning to the term 'relatives' so as to oust brothers and sisters from its purview and that of Section 2(ec). The father, brothers, sisters in this case are covered within the meaning of victim defined in Section 2(ec) as the deceased victim was unmarried, especially as they are living together with ties intact."

Further, refuting State Counsel's other objection to the claims of the family of the victim that there is no provision in the Act of 1989 or the Rules of 1955 for providing Government employment or employment under a Government undertaking, Court stressed that Rule 15 of the Rules 1995 (Contingency Plan by the State Government) itself answers the submission.

Court, furthermore, rejected the contention of the State counsel that the employment is also to be given only to dependents under Item 46 of the Schedule Annexure-I to the Rules 1995. Court agreed with amicus curiae's submission that the term 'and' used in Clause (i) of Column 3 of Item 46 is conjunctive, not disjunctive.

"The sine qua non is that whichever family member is provided employment has to sustain the family and if he does not do so then he can be deprived of such employment and some other family member can be provided the same," Court held. 

Lastly, referring to the assurance given by the Chief Minister of the State to the family of the victim, however, clarifying that even without the assurance one of the family members is entitled to be considered for employment under the Rules of 1995, Court directed the State Government to consider employment of one of the family member of the deceased victim under the Government or Government Undertaking commensurate with the qualification possessed by them.

Regarding the relocation of the family, Court directed the State to consider it too and take a decision within 6 months. 

"The reason we are directing the State to consider this relocation instead of directing the family members to approach the Special Court under Section 15-A(6)(d) is that.....there is no reason as to why we should make the family members, who belong to downtrodden class, run to the Court and engage themselves in proceedings before it when the State has not yet considered their request for relocation."

In light of the abovesaid observations, the District Magistrate, Hathras has also been ordered to 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 background:

On October 1, 2020, the High Court took suo moto cognizance of the issue of the alleged forceful cremation of a gang rape victim at 2 am by the UP Police instead of handing over her body to the family.

Case Title: In Re: Right to decent and dignified last rites/cremation