Hathras Gangrape: “Forcible Cremation by the State is Against the law”- Indira Jaising

The brutal gangrape of a Dalit woman by Uppercaste men in Hathras has sent shockwaves across the country. Even more shocking is the alarming way in which the police cremated her body in the absence of her family members at 3 am in the night. GOVINDRAJ, Founder of Boomlive, spoke to INDIRA JAISING, Founder of The Leaflet, about the legal framework involved in this case.

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 A 19 year old dalit woman was allegedly gang raped by four upper-caste men in Hathras, Uttar Pradesh. This happened about two weeks ago. She was initially admitted to a district hospital with her tongue cut off and her spinal cord severely injured. She was later shifted to a local hospital and then to Safdarjung Hospital in New Delhi, where she died a few days ago. 

Now the unusual development that followed this was also the hurried or seemingly hurried cremation of the body back in the village at 3 a.m in the morning. 

This raises a few larger questions. What is the role of the police when it comes to cases like this? What can we as ordinary citizens expect the police to do and not do?

I am now joined by Indira Jaising, the noted human rights lawyer and Senior Advocate at the Supreme Court of India and also Founder of the Lawyers Collective.

Ms Jaising, thank you very much for joining us. 

We are witnessing what we in law would describe as “institutional failure”. Institutions down the chain have let down this woman and it’s there that we need to focus our energies when our institutions are going to change India.

What is it that should be the role of police from the point when a woman or the family files in an FIR that an incident like this has happened?

I’ll take you one step before the filing of the FIR, when the victim makes what we call a complaint. Now this complaint can be either in writing or oral. The offence of rape is a cognizable offence which the police can investigate without a warrant from a court. They can also make an arrest without a warrant that brings you to the stage of the FIR. 

In law, the police are bound to translate the complaint of the victim into what we call today an FIR. 

The FIR basically stands for First Information Report and it’s recorded under Section 154 of the Indian Penal Code. This I think is important for people to understand, that they have a right to approach a police officer with a complaint and the police are bound to record as an FIR. 

The Supreme Court held in the now famous case of Lalitha Kumari that the police are not only bound in law to register an FIR but also to give a copy to the victim. This is one of the first points at which things can get messed up i.e the non-recording of the FIR. 

Forget about anything else, please record the FIR. In this case, the girl was also then taken to hospital, which also may happen in many cases because usually physical violence involved. 

So how do things proceed thereon?

Right. A very important question, because this brings in the role of the medical profession.

Now after years of advocacy by the women’s movement, we managed to get a protocol issued by the Ministry of Health which tells every doctor everywhere how to proceed with an investigation. One of the most important elements of this protocol is that it’s a very detailed form which has been provided to doctors under which you know the subjective element is done away with and there are certain objective questions which we have to fill in into the medical report. This becomes the basis of forensic evidence. 

As you know one of the important things is they are never supposed to do what we call a two finger test. Now the two-finger test was traditionally done to check the elasticity of the vagina and it was used to argue that the woman is quote-unquote “accustomed to sexual intercourse” and then seek an acquittal on that basis.  

You must understand that the police are not the only authority which is engaged in the investigation of rape. The medical profession plays a very very important role. There is the role of the medical profession that they’re supposed to discharge when the police bring a rape victim normally to a public hospital. If we look at the case in UP, now regardless of what the finding is and whether that gets contested on whether she was raped or was this procedure followed, it’s here that things have got folded up as, to the best of my knowledge, it was not followed.

So how do we be more alert to the bullet in the legal and medical system in a manner that, even if unfortunate cases were to happen in future, the right kind of pressure is there on the system to ensure that there is justice.

But more importantly, we actually have videographed evidence of what we in law call a dying declaration in which she very clearly says “I was raped”. Now when a woman dies after having made any declaration whether it’s rape or whether it’s dowry death or whether it’s alleged suicide or murder, this dying declaration has a very special status in law because the woman who made it is dead and therefore the evidentiary value of this declaration is very very high under the law. 

The law presumes that if a person is on the verge of death then they are not going to lie about what they’re saying. So I would say if you want me to come to the specific facts of this case she has made a dying declaration that is videographed and she’s made a declaration that she was raped. 

She was shifted from one hospital to another one and then finally to Safdarjung Hospital in Delhi where she died. After that now at any of these points do the responsibilities of the different medical personnel who have been treating her differ or change or is the primary responsibility on the first medical personnel who saw her?

At any point in time, so long as the victim is in a hospital, the responsibility is entirely on the shoulders of the administration of the hospital and the medical profession. It never shifts from there whether it be in the form of treatment or whether they can summon the magistrate to come to the hospital because she’s not fit to go to one to give a statement. That responsibility never shifts. 

To answer your question briefly, the responsibility is until such time as she actually leaves the hospital. It is their record which is presented at the trial where they are summoned as witnesses to justify their record. 

Chronologically, the onus of proof on establishing whether there was a rape or not would be with the first hospital. The subsequent hospitals will have to validate what the first hospital has done or contradict it as the case may be. 

We have a system where once an FIR is recorded and it it doesn’t matter in whose jurisdiction it is recorded because so long as you have custody of the body of a woman who has made a dying declaration that she has been raped, then you have to conclude all your investigation.

You see, that’s the importance of what we call the First Information Report. The very first contemporaneous record always has a very high evidentiary value. Right now in this case the person, she passed away, the body was released and then it was cremated in somewhat unusual circumstances. Now what should have happened in an ideal situation, is that the hospital says that this is a medical-legal case and so we’ve handed over the body to the police and that’s the norm.

What should have been the procedure once the person, in this case, a girl who was or a lady who was allegedly raped, died? 

The first thing I would like to know is whether a postmortem was conducted by the hospital before handing over the body to the police. Normally, they would have handed it over to relatives because once the legal procedure of a post-mortem is complete then the body is handed over to the relatives. 

On the contrary, they wait till a relative claims it. This is a very important point because it raises the question of who is entitled to the dead body?

It’s only the next of kin. So all legal procedures ought to have been completed at Safdarjung Hospital, after which the body could have been handed over to the relatives. 

I see no explanation for handing over the body to the police. 

This is a dead body. They don’t own a dead body and the state has no claim to anybody’s dead body except for the purpose of a criminal investigation, which was supposedly completed after she was released from suffering. 

They could have claimed it on the grounds that they were continuing the investigation.  For example, if they said we need to do a postmortem then that’s a different issue altogether. But the post-mortem should have been done in the hospital before the release of the body, and that was not done in this case. Since they have included the charge of murder, so a postmortem should have been done.  

You must understand that the police are not the only authority which are engaged in the investigation of rape. The medical profession plays a very very important role.

At this point I don’t have any information about it, right? At this point, I have not read anything about it in the public domain. All that I’m seeing in the public domain is a denial that there was ever any rape. In my knowledge rape has not been included in the FIR, so this is a matter of speculation so let’s not go there.

The cremation happened at 3 a.m at night. So what are the conditions in which something like this could happen or should be allowed to happen? 

There are none and let me be very clear about it. That’s why I want to come back to the point of who does a dead body belong to? 

I haven’t heard this articulated loud and clear by the police, that they did it in order to prevent a so-called law and order situation. I don’t know what is their justification for having cremated her at three in the morning and that too in the absence of the relatives. Not just the absence of the relative, but also denying the relatives the right to be present at the cremation to conduct the rituals in accordance with their beliefs and in accordance with their religion. 

So if your question is under what circumstances could this have been done, then the clear and categorical answer is that there is no circumstance under which this can be done right. 

Let me pose a flip question, suppose the relatives did want the cremation to happen, for whatever reason, as soon as the body arrived in the village and it reached at around that time of the night, if they wanted to do then they could. 

Is there something else in law which says that the cremation cannot happen until there the investigation or the paperwork is complete?

The investigation and the paperwork has to conclude before the dead body is handed over to anybody. They do not have the right to hand it over to the police either. We have a system where once an FIR is recorded and it doesn’t matter in whose jurisdiction it is recorded because so long as you have custody of the body of a woman who has made a dying declaration that she has been raped, then you have to conclude all your investigation. 

The chain of custody cannot be disrespected. 

Here, they have disrupted the chain of custody by handing it over for to the UP police for reasons best known to them. 

… this dying declaration has a very special status in law because the woman who made it is dead and therefore the evidentiary value of this declaration is very very high under the law.

So you’re saying that in the chain of events, the point at which the body was cremated is of course is unusual, but the point at which the body was handed over by the hospital is the most unusual point and to who was it handed over? 

As you know they had an obligation to wait till the relatives came.  In fact, they had an obligation to alert the relatives that the woman has died. You are the next of kin and till you claim the body they must put it in a morgue. 

There has been another rape case and another woman has passed away from what we hear.  So how do we be more alert to the bullet in the legal and medical system in a manner that, even if unfortunate cases were to happen in future, the right kind of pressure is there on the system to ensure that there is justice?

I’m gonna just leave you with an example which comes from the city of Mumbai. Thanks to the activism of women’s groups and health groups in Mumbai, they adopted a specific hospital which belonged to the BMC and within the premises of the hospital they set up what is known as the dilasa center. 

We had a very proactive administrator of the Bhava Hospital there, Dr Sima Malik, who has retired now. She welcomed this initiative of dilasa and ensured that a high level of training was given to not only the doctors but the paramedics and nurses as well. Everybody from top to bottom was trained, with written protocols in place and with everything that is required.  

I think that the dilasa model should be adopted in every single hospital in the country. If you are aware, funds were dedicated for what is known as one stock crisis center. If states have not spent money given to them for this. 

You have to have a combination of political will at the head of administration, hospitals, police and last but not the least will at the head of administration of the judiciary. 

I think the judiciary simply lacks administrative skills, it has none. It’s not enough to have judicial skills because by the time you reach the judiciary the damage is done. We are witnessing what we in law would describe as “institutional failure”. Institutions down the chain have let down this woman and it’s there that we need to focus our energies when our institutions are going to change India.

Govindraj: Thank you so much for joining us and giving us your insights. Hopefully, when future cases, unfortunately, do emerge, our institutional systems are far more alert and, if not them, the citizens are more alert to ensure that these things don’t happen again. 

The article was originally published in The Leaflet.