Forcible Cremation By The State Is Against The Law: Indira Jaising

Lawyer Indira Jaising weighs in on the UP police cremating the Hathras survivor's body at 3 am without her next of kin.

A 19-year-old dalit woman who was allegedly raped and assaulted by four men on September 14 in Hathras, Uttar Pradesh passed away on September 29 in Safdarjung hospital in Delhi. The UP police later denied that she was sexually assaulted on the grounds that a forensic report had not found sperm in the sample.

After her death, the woman's body was taken to back to Hathras, which is about 200 km from Delhi. Her body was cremated by policemen on the night of September 30 at 3 am, as her family and relatives were reportedly locked up in their homes. The visuals of the forcible cremation, shot by television reporters at the site has invoked widespread condemnation on social media and protests by opposition parties in the state and around the country.

Speaking to BOOM, noted human rights lawyer and a senior advocate at the Supreme Court of India, Indira Jaising said that the police or the state has no rights over a dead body once their investigation is complete.

"Who does a dead body belong to? Even though the police said that they did it in order to prevent a so-called law and order situation, what is the justification for having cremated at three in the morning, that too, in the absence of the relatives? There is no circumstance under which this could have been done," she said.

The interview can be watched here.

Edited excerpts of the interview can be read below.

Govindraj Ethiraj:

So, first question, what should the role of police be from the point when a woman files a case or an FIR; or the family files an FIR when an incident like this has happened?

Indira Jaising:

I will take you one step before the filing of the FIR. So the victim makes what we call a complaint. Now this complaint can be either in writing or oral. This offence of rape is a cognizable offence, what in law we call a cognizable offence. So a cognizable offence is an offence which the police can investigate without a warrant from a court, and they can also make an arrest without a warrant. So that brings you to the stage of the FIR. And in law, the police are bound to translate the complaint of the victim into what we call today an FIR. And the FIR basically stands for First Information Report. And it's recorded under Section 154 of the Indian Penal Code.

So that I think is important for people to understand that they have a right to approach a police officer with a complaint, which the police are bound in law to record as an FIR. Now the Supreme Court held in the now-famous case of Lalita 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. The non-recording of the FIR. So this is the first expectation from the police. This is the answer to your question. Forget about anything else, forget about the investigation, please record the FIR.

Govindraj Ethiraj:

Right now, in this case, the lady was also then taken to hospital which also may happen in many cases, because there is usually physical violence involved. So how do things proceed thereon?

Indira Jaising:

A very important question because this brings in the role of the medical professional. 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 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, which becomes the basis of forensic evidence. As you know, one of the important things is they're 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 seeking equity on that basis. So we're here now at the hospital, talking about the role of the medical professional. You must understand that the police are not the only authority, which are engaged in the investigation of rape. The medical professional plays a very, very important role. So that's the role of the medical professional, that they're supposed to discharge when the police bring a rape victim normally to a public hospital.

Govindraj Ethiraj:

So if we look at the case, in up now, I mean, regardless of what the finding is, and whether that gets contested on whether this lady in question was raped, was this procedure followed?

Indira Jaising:

It's here that things got fouled up. To the best of my knowledge, it was not followed. But more importantly, we actually have videograph evidence of what we in law call a dying declaration, in which he 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, where we argue that no, this was murder, this time 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 the person is on the verge of death, they are not going to lie about what you're saying. And so I would say, if you want me to come to the specific facts of this case, she has made a dying declaration. And that is videographed by, I don't know, maybe journalists, maybe anybody. But the fact is, she's made a declaration that she was raped.

Govindraj Ethiraj:

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

Indira Jaising:

So long as the victim is in a hospital, that responsibility is entirely on the shoulders of the administration of the hospital, and the medical professional, it never shifts back. Whether it be in the form of treatment, when they can summon the magistrate to come to the hospital and say, 'Come here, because she's not fit to go to you, and to give a statement to you about her condition, and what she wishes to say.' So the responsibility never shifts to answer your question briefly, until such time as she actually leaves the hospital, and it is their record, which is presented at the trial, and they are summoned as witnesses to justify their record.

Govindraj Ethiraj:

Okay, but chronologically, the onus of proof when it comes to establishing whether there was a rape or not would be with the first hospital? Or could that be with the subsequent hospitals as well?

Indira Jaising:

It will be with the first hospital, the subsequent hospitals will have to validate what the first hospital has done or contradicted as the case may be. But yes, you see, that's the importance of what we call the 'First Information Report,' the very first. So the very first contemporaneous record always has very high evidentiary value.

Govindraj Ethiraj:

Right now, in this case, she passed away, and the body was then released, and then we come to the point about the body being cremated in somewhat unusual circumstances. Now, what should have happened in an ideal situation, the hospital seems to say that this is a medico-legal case, and we've handed over the body to the police.

And that's the norm. Now, there are questions about whether the police had permission from the family or whether the family was coerced, but we'll come to that in a bit. But what could have been the procedure once the person, in this case, a girl who was allegedly raped, died.

Indira Jaising:

Yeah, the first thing I would like to know is whether a post mortem 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 gets handed over to the relatives. On the contrary, they wait till a relative comes, this is a very important point, because the question it raises is, who is entitled to the dead body? Okay.

And it's only the next of kin. So all legal procedures ought to be 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. They don't own a dead body. The state has no claim to anybody's dead body except for the purpose of the criminal investigation, which supposedly was completed after she was released from Safdarjung Hospital.

Govindraj Ethiraj:

You're saying that they could have claimed it on the on grounds that they were continuing the investigation?

Indira Jaising:

If they, for example, if they said we need to do a post-mortem. That's a different issue altogether. But as I told you, the post-mortem should have been done in Safdarjung Hospital before the release of the body.

Govindraj Ethiraj:

And now and that, and that was done in this case?

Indira Jaising:

They have included the charge of murder in the files, obviously, a post-mortem should have been done.

Govindraj Ethiraj:

And you're saying that there is no suggestion that there was a post-mortem at this point?

Indira Jaising:

I mean, I don't have any information about it. Right. 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. To the best of my knowledge, rape has not been included in the FIR.

Govindraj Ethiraj:

This is a matter of speculation, so let's not go there. So let me come to the cremation, the cremation that happened at 3 am at night. So what are the conditions in which around which are in which something like this could happen? Or should be allowed to happen?

Indira Jaising:

There are none. And let me be very clear about it. And that's why I want to come back to the point that I was making. Who does a dead body belong to? I am taking it for granted. I mean, 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, right?

I don't know what is the justification for having cremated the body at three in the morning, that too, in the absence of the relatives, but also denying the relatives the right to be present at the cremation or conduct the rituals in accordance with their beliefs and in accordance with religion, whatever to which they belong. So, if your question is under what circumstances could this have been done? The clear and categorical answer is no circumstance under which this can be done.

Govindraj Ethiraj:

So let me pose a flip question. Suppose the relatives did want the cremation to happen, for whatever reason, at as soon as possible, as soon as the body arrived in the village, which is about 200 kilometres from New Delhi, and it reached around that time of the night, if they wanted to do that, could there be something else in law which says that until there is a completion to either the investigation or other paperwork, this shall not happen?

Indira Jaising:

See, as it told you, the investigation and the paperwork has to conclude before the dead body is handed over to anybody that they had, they do not have the right to hand it over to the UP police either, because we have a system where once an FIR is recorded, and it doesn't matter in whose jurisdiction it is recorded. You are in Delhi, you are in Safdarjung Hospital, you have custody of the body. You have a dying woman on your hands, you have a woman who has made a dying declaration that she has been raped, it's there and then that you have to conclude all your investigation because the chain of custody cannot be disrupted. And here, they have disrupted the chain of custody by handing it over to the UP police for reasons best known to them.

Govindraj Ethiraj:

So you're saying that in this chain of events so far, the sequence of events, the point at which the body was handed over by the hospital is the other next unusual, most unusual point?

Indira Jaising:

Oh, yes. And to whom was attended over, you know, they had an obligation to wait till the relatives came. They had an obligation to alert the relatives, here is a woman she's died, you are the next of kin to come and claim the body. And until then put it in a morgue.

Govindraj Ethiraj:

Just to sort of sum it up, if if you were to you know, I mean, there has been another rape case and another woman has passed away from what we hear. Now, how do we, you know, be more alert to the police or the legal medical system in a manner that maybe even if, unfortunately, cases, what happened in future, the right kind of pressure is there on the system to ensure that there is justice.

Indira Jaising:

Okay, so I'm going to just leave you with an example which comes from the city of Mumbai. And thanks to the activism of women's groups and health groups. In Mumbai, they adopted a specific hospital, which belonged to the Mumbai Municipal Corporation, and within the premises of the hospital, they set up what is known as the Dilasa centre. Now, the role of this, we have a very proactive Administrator of the hospital there, Dr Seema Malik, she has retired now. And she welcomed this initiative of the Dilasa, located it within the premises of the hospital, and ensure that there was a high-level training given to not only the doctors but the paramedics, the nurses, everybody from top to bottom, with written protocols in place, with everything that is required to, to train medical professionals.

I think that model should be adopted in every single hospital in the country, it's not been done, you are aware that funds but dedicated for this, what is known as one-stop crisis centres it states have not spent money given to them. So you have to have a combination of political will at the head of administration, and hospitals will at the head of administration, among the 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. So I would say we are witnessing what we in what I in law would describe as quote-unquote, an institutional failure. Okay, institutions down the chain, have let down this woman. And it's there that we need to focus our energies, when are institutions going to change?

Govindraj Ethiraj:

Indira Jaising, thank you so much for joining us and giving us your insights on how to look at and hopefully, when future cases unfortunately do emerge. Our institutional systems are far more alert and if not, the citizens are more alert to ensure that these things don't happen again. Thank you so much.

Updated On: 2020-10-08T09:35:18+05:30
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