In a state where inequality trumps
equality, justice is a chimera
Bhushan Koyande

Uttar Pradesh has proved it is an 'Ulta' Pradesh, where the government appeared to protect those who had allegedly raped and murdered an innocent, 19-year-old Dalit girl. It violated the right to life and liberty guaranteed under Article 21 of the Constitution of the victim's family by ensuring the body of the girl was cremated in the dead of night, without the permission of the her family, thereby destroying vital evidence against the four alleged rapist-murderers.

The right to protest is an inviolable fundamental right enshrined in the right to gather peacefully and without weapons. After violating the fundamental rights of the Hathras rape victim's family, the Yogi Adityanath government embarked on a spree of lodging multiple FIRs against protesters and even journalists discharging their duty of informing the rest of India about the horror in this state. These FIRs have been lodged under Section 124-A and also under the draconian Unlawful Activities Prevention Act. The inescapable inference is that the Yogi Adityanath government wants to stifle protest against this heinous crime against this innocent Dalit girl and her family by camouflaging the adverse publicity as a "world conspiracy to defame the government".

But there is a world of difference between trying to overawe a government established by law using violence and the simple right to protest against the government enshrined in Article19.

The Allahabad high court will, in all probability, quash these FIRs against the protesters but by the time this is done, the victims will have frittered away a part of their lives by their legitimate protests against a government which does not deserve to govern the largest state in India. For, 'Ram Rajya' ensures dignity for women and not their degradation as mere objects of lust. By cremating the body of the victim, the district police have ensured that a second post mortem could not be carried out.

So, in a legal system inherited from the British, where the more heinous the crime, the more stringent the evidence required, this will redound to the benefit of these degenerate accused persons, who may not face the charge of rape but only that of murder. So, at the most they may get life imprisonment when they deserve the death sentence.

News reports alleged the district magistrate (DM) visited the distraught family and kicked a senior member. If true, this official has committed a criminal offence which should result in an FIR against him. But just like the transfer of the SP, at the most, the DM will be transferred elsewhere and reinstated depending upon his equation with his political bosses.

North India continues to emerge as the region with the highest number of rapes in the country with Madhya Pradesh, Uttar Pradesh, Chattisgarh and Haryana recording the highest number of rapes. Delhi tops among the four metros, with 1,253 cases recorded in 2019. Several thousand rapes go unreported by the victims' families due to the stigma attached to the crime. In a country where Goddess Sita is held up as the ideal for Indian women, the brutality of the government by trying to victimise the victim's family by blandly alleging her mother was three metres away from the incident, is a grave violation of human rights.

The 43 sections in the Protection of Human Rights Act, 1993, are not stringent enough to be used against the DM, who allegedly kicked a family member and the UP government, which is the greatest violator of human rights. Of the seven human rights listed, the right to equality, freedom against exploitation and freedom of movement have been grossly violated by the Yogi Adityanath government. No amount of money will bring back the 19-year-old girl who was brutalised by the alleged rapist-murderers. But in a state where the right to inequality overrides equality, justice is a chimera. After all, the victim's family is uneducated and unable to tackle the labyrinthine twists-and-turns of the UP government to seek redressal.

The police have now conjured up a version that the victim was friendly with Sandeep, one of the four accused but the victim's family was opposed to the alleged friendship. It is easy for the police to defame the dead victim but in doing so, additional provisions of the Protection of Human Rights Act, 1993 have been attracted.

Five hundred and ten law students have written to Chief Justice of India Sharad Arvind Bobde, asking that the Supreme Court initiate stringent action against Hathras Police and the district administration, for allegedly trying to dilute the case when the victim had given a dying declaration that she was raped. She had stated in her dying declaration how she was treated, while she drifted in and out of consciousness.

Despite this unimpeachable piece of evidence, Hathras Police claimed the victim was not raped. The Evidence Act acknowledges that a dying declaration is hearsay because the author cannot be cross-examined as is done in a court of law. But there is a sanctity attached to a dying declaration because when a person is on the threshold of death, they will normally tell the truth. This is why the victim unequivocally declaring she was raped is admissible as evidence against the four accused. Unless it is proved that she never made such a dying declaration.

It logically follows that Hathras Police allegedly become accomplices of the four accused persons by cremating her body in the dead of the night. And FIRs should be lodged against them, after taking the permission of the state government. This is because public servants are immune for their actions in dicharge of their duty. The Yogi Adityanath government will never allow this, saying the matter has been handed over to the CBI. So, it is not wrong to infer the Hathras police and district administration will be shielded by their political bosses. The CBI will only probe the crime of rape-and -murder, which may benefit those police officers who cremated the body of the victim without the presence of her family members.

A girl is raped every 20 minutes in Bharatmata, projecting an image to the rest of the world that India is unsafe for women.

South Africa judge Mabel Jansen was quoted as saying some blacks raped babies, children and mothers, for which she was accused of racism. Casteism is a species of racism and in UP, where the hapless 19-year-old Dalit girl was allegedly raped before the police burnt her body, justice may remain a rainbow in the sky.

Olav Albuquerque holds a PhD in law and is a journalist-cum-lawyer of the Bombay high court.

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