Why (not) so serious? Hathras case analysed....

Aparajita Gupta
Oct 21, 2020
7 min read

Updated: Nov 14, 2020

“The day a woman can walk freely on the roads at night, that day we can say that India has achieved independence”

- MK Gandhi

What about walking freely in the daylight? Are we truly independent, or is it just a phantasm? Have we done anything draconian yet to solve this Gordian knot, or are we just mouthing? What is stopping us? Who and what are we afraid of? How many lives will it take?

And the list goes on…

These questions seem pretty fathomable yet recurring as we come across them every few months because it only takes something wickedly inhuman to happen [which, if we look at the records, has become quite common in our country]- just to forget about them after 2 days of social media outrage and wait for the next one to happen.

But the tedious repetition only makes it obvious that these questions have not been answered yet, and there is enough of blabbering and ranting. And it is about time that the words spoken are matched with their promised actions.

To understand the depth of this recurrent plight, we must go full meticulous and as deep as we could.

· What happened in Hathras?

Four upper caste men allegedly gang-raped a 19-year-old Dalit woman in Hathras district, Uttar Pradesh, India. The incident took place on 14 September 2020, when the victim, a 19-year-old Dalit woman, went to a farm to collect cattle fodder. The men dragged her away by dupatta around her neck, injuring her spinal cord in the process. The violence left her paralyzed with a severe spinal cord injury. The perpetrators had tried to strangulate the girl as she resisted their rape attempt. Her cries were heard by her mother, who came to the spot to find her lying down in the farm with her tongue cut off. After fighting for her life for two weeks, she died in a Delhi hospital on 29 September.
She was at first taken to the Chand Pa police station, where the police rejected her claims and, according to the family, humiliated them. The police registered a complaint only on 20 September.
The victim was initially admitted to the Jawaharlal Nehru Medical College and Hospital in Aligarh days before her death, with her spinal cord being severely damaged and was on a ventilator. It was only on 22nd September that she regained consciousness and gave a statement to police based on which they arrested the four accused — Sandip, Ramu, Lavkush, and Ravi — on charges of attempt to murder, gang rape, and violations of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. She was later shifted to the Safdarjung Hospital in Delhi after her condition worsened, and eventually, she died on 29th September.
The four alleged rapists belong to the Thakur caste. The mother of the victim said that Sandeep and Luv Kush had been harassing her and the victim for months. One of the accused, Ravi and his father, had been arrested 15-20 years back, for allegedly assaulting the victim's grandfather.
The autopsy noted that the victim died of injury to the cervical spine by blunt-force trauma, and the attempt to strangle her was not the cause of death. The final post-mortem report also refers to old tears in private parts, but no rape.
The victim was cremated on the night at about 2:00 am on 29 September 2020 by Uttar Pradesh Police without the consent or knowledge of the victim's family.
The forced cremation led the Allahabad High Court to take Suo Motu cognizance on 1st Oct. The bench also asked the victim's family, the District Magistrate, and the Superintendent of Police to appear before it. The bench further added, "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".
On 3 October, the state government suspended five police officers, including the Superintendent of Police.

· What went wrong?

❖ Procedural Lapses in the case:

8 Days delay in FIR: The incident took place on 14th September, and the FIR was registered on 22nd September, 8 days later, only when the victim gave the statement to the police, and under 2 days, they arrested all 4 accused. WHY the wait? Why the police did not register the FIR of rape and sexual assault when the family was pleading that the rape was done from the start.
Delay in the medical examination: It was stated by the officials that there was no sign of rape as nothing was found in the final report.

Amendment after NIRBHAYA’S case: The Criminal Law Amendment Act,2013 emphasises examination as well as treatment of the victim, both physical and psychological, in addition to mere evidence collection. Also, the dying declaration of the victim is crucial evidence.

In this case, the forensic examination was conducted on September 22nd, 8 days after the incident. In the cases of rape, according to government guidelines, the forensic samples should be collected within 72 hours of the incident, as the sperms cannot survive after more than 90 hours.

Also, according to section 375 of IPC, we find that the purview of rape to be extensive in nature. And not finding sperms does not mean that it wasn’t a rape. If we take a look at the autopsy report, there was enough evidence of sexual assault and rape, plus the victim’s own dying declaration confirms rape.

Fundamental Rights were violated in this case: Article 21 of the Indian Constitution, which guarantees every person the right to live a life with dignity, and this includes the right to have a decent burial/ cremation/ last rite as per traditions or will of the deceased.

But in this case, the question arises that where and which legislation give the explicit right or power to the State to bury/cremate/burn a dead body of the victim of a heinous crime without the consent & will of the family and what was the grave urgency on the part of the state? Will this not be considered as the destruction of evidence, and what were they trying to hide if they were not wrong?

Who is to be blamed?

According to the National Crime Records Bureau (NCRB) 2019 report, crimes against women have witnessed a steep rise across the country.

As per the horrifying statistics, every 16 minutes, a woman is raped somewhere in India, and every 4 minutes, women experience cruelty at the hands of her in-laws. In 2019, the country recorded 88 rape cases every day. A total of 4,05,861 cases of crimes against women were registered during 2019, showing an increase of 7.3% over 2018. Of the total 32,033 reported rape cases in the year, 11% were from the Dalit community. If these alarming statistics do not let you fall into the abyss of thinking, then it is impossible to say what will.

The NIRBHAYA’S CASE occurred on 16th December 2012, and after 7 long years of suffering and tussle on 20th March 2020, the 4 accused were executed.

But paradoxically, IRONY DIED A MILLION PAINFUL DEATHS after that because the ratio of such crimes instead of falling took a rise. Justice delayed is not only justice denied but also the main motive and principle behind giving punishment to reduce the frequency, and the likelihood of future offences is completely lost.

While there is baffling subjectivity in the imposition of capital punishment in India, the Doctrine of Rarest of Rare was established in the case of Bacchan v. the State of Punjab. Later, in the case of Macchi Singh v. the State of Punjab, the court tried to lay down criteria for assessing whether a crime fell into the category of rarest of rare.

What is a Rarest of Rare case?

In the Macchi Singh case, the court laid down certain criteria for assessing when a case could fall under the ambit of rarest of rare. The criteria are analysed as below:

Manner of commission of murder: When the murder is committed in an extremely brutal, ridiculous, diabolical, revolting, or reprehensible manner so as to awaken intense and extreme indignation of the community.
The motive for the commission of murder: When total depravity and cruelty are the motives behind a murder (for instance).
Socially abhorrent nature of the crime: When a murder of a person belonging to one of the backward classes is committed. Cases of bride burning, famously known as dowry deaths, are also covered in this.
Magnitude of the crime: When the proportion of the crime is massive, for instance, in cases of multiple murders.
Personality of the victim of murder: When the murder victim is an innocent child, a helpless woman or person (due to old age or infirmity), a public figure, etc.

Then why the wait in the cases of extreme culpability when the criteria given by the Supreme Court itself are fulfilled, just to let the delayed punishment go to waste, makes no sense. Then why even bothered giving such judgements when they are not going to be complied with in the future.

➤ Metaphorically speaking, when a problem is given in a mathematics exam, we put an already established formula, follow the steps using that formula, reach the answer, and then we wait for the examiner to take his time, check the answer whether it’s right or wrong and provide us with the required result.

Similar is the case with the Justice System. If we don’t write the formula in the law and not implement it afterwards, then how can we reach the required result? Things take time, but first, we need to do the deed to check whether we are on the right track or not then only we can say whether the formula is working or not. The result depends on whether you are saying it or doing it. After all, you don’t get the results in exams just by saying the answer, you need to write it, and the sooner you write, the sooner you get the results.And then you realize if your answer is right or not; that is how the system works. You cannot eat the cake and have it too. Enough of blabbering and ranting - now is the time to do the work. Life itself is the result of various chain reactions. To get the wanted results, we need to follow the systematic steps.

➤ Some say, “not all boys”, but we already know that, don’t we? But that doesn’t seem to make any difference, and it isn’t enough to handle the hornet’s nest, neither does saying teach your sons is helpful enough because it is still happening, isn’t it? And that too pretty much every hour, which points out that the problem lies somewhere else. It is time we understand that Rape is not an individual issue but excessively a social one, and we need to solve it with one accord.