The Hope of 'Suo Moto'

BY: Areeb Uddin Ahmed

A town in Uttar Pradesh known as 'Hathras' has been in the news, not because there was a roar of development but an incident took place which shook the conscience of the Nation. Rape cases cannot be categorized according to any 'degree', because every case is 'rare' and the violation of one's dignity is never traceable. One should never comment about such incidents, because media trial is a threat to justice sometimes because it openly exposes the safety of the victims, witnesses etc. But what happens when the expected ones are eventually failing to discharge their duties? Then the media has to step in with a camera to expose the truth (not everywhere, obviously).

A bench led by Justice Rajan Roy of the Allahabad High Court took suo moto cognizance of the rape incident which happened in Hathras. A court of law can take take 'Suo Moto' cognizance when it feels that a matter requires serious and immediate legal intervention. Supreme Court has been granted with suo moto power under Article 131 of the Indian Constitution. The observations which have been made by the Hon'ble Judge(s) is equally important and relevant is this times. Tomorrow the nation will be observing a 'National' holiday in the memory of 'Mahatama Gandhi', the court in the order rightly highlighted what the Father of the Nation had observed back then:

These lines are very relevant if we take into consideration the happenings around us where the poor are being deprived of their basic rights. Judiciary is ought to be the guardian of the 'Constitution' and the holy document equally charges a duty to monitor the rights of the 'indigenous' ones. The rape incident was no less brutal but whatever happened thereafter was no less, the court rightly observed:

"As it is, the deceased victim was treated with extreme brutality by the perpetrators of the crime and what is alleged to have happened thereafter, if true, amounts to perpetuating the misery of the family and rubbing salt in their wounds."

The court retaliated and observed that right to life is an important facet of Article 21 and also a dignified life is a part of the same shelter. Reference was given to the landmark case of Pt. Parmanand Katara Vs. Union of India (UOI) and Others in which the court rightly noted and agreed with the contention of the petitioner that right to dignity and fair treatment under Article 21 of the Constitution of India is not only available to a living man but also to his body after his death.

One more important factor about this case is the 'public outrage' which is wrongly distributed. Most of the people are campaigning against this brutal incident by using the name of the victim, along with the photography, which morally as well as legally is an offence. One cannot even undergo the amount of burden/humiliation which the family must be going through right now. For you, it's just another case, but for them its a battle towards the justice.

Also, in the Supreme Court has rightly observed in Bhupinder Sharma vs State Of Himachal Pradesh:

"We do not propose of mention name of the victim. Section 228-A of the Indian Penal Code, 1860 (in short the 'IPC') makes disclosure of identity of victim of certain offences punishable. Printing or publishing name of any matter which may make known the identity of any person against whom an offence under Sections 376, 376-A, 376-B, 376-C or 376-D is alleged or found to have been committed can be punished. True it is, the restriction does not relate to printing or publication of judgment by High Court or Supreme Court. But keeping in view the social object of presenting social victimization or ostracism of the victim of a sexual offence for which Section 228-A has been enacted, it would be appropriate that in the judgments, be it of High Court or lower Court, the name of the victim should not be indicated. We have chosen to describe her as 'victim' in the judgment."

The concerned provision which restricts such publication is Section 228-A of the Indian Penal Code

Disclosure of identity of the victim of certain offences etc.—

(1) Whoever prints or publishes the name or any matter which may make known the identity of any person against whom an offence under section 376, section 376A, section 376B, section 376C or section 376D is alleged or found to have been committed (hereafter in this section referred to as the victim) shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.

(2) Nothing in sub-section (1) extends to any printing or publi­cation of the name or any matter which may make known the identi­ty of the victim if such printing or publication is—

(a) by or under the order in writing of the officer-in-charge of the police station or the police officer making the investigation into such offence acting in good faith for the purposes of such investigation; or

(b) by, or with the authorisation in writing of, the victim; or

In cases where the Victim is dead:

(c) where the victim is dead or minor or of unsound mind, by, or with the authorisation in writing of, the next of kin of the victim: Provided that no such authorisation shall be given by the next of kin to anybody other than the chairman or the secretary, by whatever name called, of any recognised welfare institution or organisation. Explanation.—For the purposes of this sub-section, “recognised welfare institution or organisation” means a social welfare institution or organisation recognised in this behalf by the

Central or State Government.

(3) Whoever prints or publishes any matter in relation to any proceeding before a court with respect to an offence referred to in sub-section (1) without the previous permission of such Court shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.

Explanation.—The printing or publication of the judgment of any High Court or the Supreme Court does not amount to an offence within the meaning of this section.

The whole cognizance revolve around the idea of a 'dignified death', because whatever happened that night, when the body of the girl was cremated without involving the members of the family, was a blatant violation of the aforementioned right. If the media wouldn't been there on time, that night then this tale would've been under the table. There have been incidents where such rape cases have taken place and the sole reason was 'caste', which have been doing no good to the Dalits, who have been suffering since decades. Om Prakash Valmiki, has rightly observed in his narration - Joothan, how the upper class (As a class, not religion) blatantly violated the the idea of 'equality' and the lower circle was always humiliated.

It is noteworthy to refer what the court observed while concluding the brief order: The rights of individual citizens in the Country and the State especially that of the poor and the downtrodden such as the family members of the deceased victim and the deceased herself are paramount and the Courts of Law are under a bounden duty to see that the said rights available under the Constitution are protected at all costs and the State does not in its misplaced endeavour for political or administrative reasons transgress the limits of its powers to encroach and violate such rights, especially in the case of poor and the weak. We would like to examine as to whether the economic and social status of the deceased's family has been taken advantage of by the State Authorities to oppress and deprive them of their Constitutional rights?

Hence, all we can hope is a ray of justice and fairness from the Apex court, there is no mention about the monitoring of the 'investigation' of the SIT probe which was constituted by the UP Government, but the court stated that if it is need then it will surely do that. The case has been listed for 12th October, 2020 and has been titled as -

In Re : Right to decent and dignified last rites/cremation and the directors of different media portals have been directed to be present and coordinate in providing them with relevant materials on fact. "We further direct the Senior Registrar of this Court at Lucknow to obtain the addresses of The Times of India, The Indian Express, Hindustan Times, Amar Ujala, India TV, Aaj Tak, NDTV and TV Today and Times Now from the Director, Information, U.P., Lucknow and communicate this order to them with the request to produce relevant material and content, on the basis of which they have reported the matter in the newspapers and the electronic media about the aforesaid incident, in a Compact Disc or Pen Drive, for the assistance of this Court."

To part off, it is relevant to refer what has stated in Pt. Parmanand Case (Supra)

"There can be no second opinion that preservation of human life is of paramount importance. That is so on account of the fact that once life is lost, the status quo ante cannot be restored as resurrection is beyond the capacity of man."

About the Author: Areeb Uddin, is a law graduate from Aligarh Muslim University. Can be reached on Twitter and LinkedIn.