Is the UP government trying to ‘reinterpret’ the SC/ST Act in Hathras trial?

“Instead of punishing the men who forcefully cremated her,” said Seema Kushwaha, “the UP government now wants the court to reread the laws made for Dalits.”

Kushwaha is a lawyer representing the family of Asha, a 19-year-old Dalit woman who was gangraped in Uttar Pradesh’s Hathras district in September 2020. She died a few days later and her body was forcibly cremated by the police. Four upper caste men – Sandeep, Ravi, Ramu and Luvkush – have been arrested in the case; all four are currently lodged at the Aligarh district jail.

Two cases are simultaneously being heard in connection with Asha’s case.

The first is at the special SC/ST court in Hathras district which is hearing the case of Asha’s gangrape and murder.

The second is at the Lucknow bench of the Allahabad High Court, which took suo motu cognizance of the case and is looking into her forced cremation, the role of state officials in botching the investigation, and issues of compensation.

Meanwhile, district magistrate Praveen Kumar Laxkar, who also allegedly intimidated the family, was held responsible for the forced cremation and was transferred out of Hathras in January 2021. The Hathras superintendent of police Vikrant Vir – who told the high court he and Laxkar had taken the decision to cremate Asha’s body – was suspended for five months before being reinstated as a deputy commissioner in Varanasi.

Kushwaha told Newslaundry the court is not “passing any strong orders” on state officials. Instead, during the hearings at the Allahabad High Court, the government has asked for a reinterpretation of the SC/ST Act.

“Every time, they have new questions under the SC/ST Act,” she said, “and this entire thing is causing so much delay.”

Days after Asha’s death, chief minister Adityanath directed that the case be tried in a special fast-track court. He promised to “set an example for the future” by ensuring the “destruction” of those who “even think of harming mothers and daughters in UP”.

According to the SC/ST Act – or the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 – special courts are set up to deal specifically with caste-related atrocities. It’s the state government’s responsibility to ensure that cases tried under the act are disposed of “within a period of two months, as far as possible”. Delays in this process are also violative of Article 21.

Asha’s case began being heard in the SC/ST court on January 4 – 12 months ago.

For the want of a house and job

Importantly, the UP government had also promised compensation to Asha’s family following her death of Rs 25 lakh, a house, and a government job. While the money has been given, the house and the job have not.

Kushwaha said the state government is being “evasive” when asked about the job and house promised to the family.

“Initially, their lawyer told the court that if the family has to be given another house by the UP government, then they must give up their current house and land that they own in Hathras itself,” she said. “Why should they do that? This is just bizarre.”

The state government eventually did not pursue this argument, she said, but remained silent on giving a house.

“It is not just about giving a house. The fact is that the family is not safe in Hathras,” Kushwaha pointed out. “The witnesses are being threatened and the case is going on for so long. How are they supposed to live like this? Yogi had promised a house to this family.”

With respect to the government job, it was a long road to get to a point where the state government finally agreed to give Asha’s brother a government job.

Initially, Kushwaha said, the state refused to give Asha’s brother a government job because he wasn’t “qualified enough”. A few hearings later, the state conceded and said a third category job – referring to a non-supervisory posting like that of head clerk, stenographer or telephone operator – would be given.

Kushwaha said she cited the cases of Manish Gupta and Vivek Tiwari in court – both of whom were murdered in Kanpur and Lucknow, respectively. “In both these cases, the state government swiftly offered jobs to the wives of the victims,” she told Newslaundry. “So, why not apply the same treatment in this case too?”

The Lucknow bench of the Allahabad High Court accordingly asked the state government to submit an affidavit explaining the basis on which jobs were given, and the kind of jobs given.

The affidavit, a copy of which was accessed by Newslaundry, was submitted to the court on December 16, 2021.

The affidavit showed copies of letters given to district authorities to provide jobs for the wives of Manish Gupta and Vivek Tiwari. Tiwari’s wife Kalpana was described as being “dependent on the deceased” and so she was given a post as a special officer in the Lucknow corporation. Gupta’s wife Meenakshi was appointed as a special officer at the Kanpur Development Authority “due to the sudden demise” of her husband.

Kushwaha said the affidavit indicates how the UP government is “attempting to backtrack on their promise of a job” to Asha’s family.

“They are trying to argue in court that no other family member was financially dependent on Asha,” she said. “And hence, the family doesn’t actually require the compensatory job.”

She added, “Anyway now, after five or six hearings which took almost two months, the state government has agreed to give the job.”

Multiple times, however, she said the state’s lawyer would ask if the case should even be tried under the SC/ST Act.

“The advocate said, ‘Yes, a rape and murder may have happened but was it really because she was Dalit? How do we ascertain this?’” she said.

This is addressed by a 2015 amendment to the act under “presumption as to offences”, which said that if an accused was acquainted with a victim or family, it is presumed by law that the accused was aware of the victim’s caste identity, unless proven otherwise. In Asha’s case, the victim and all four accused have been living as neighbours for years.

Asha’s family and other Dalits in their village have also publicly spoken out on being subjected to casteist slurs and practices of untouchability. “So, this claim made by the state government is simply offensive,” Kushwaha said.

Newslaundry reached out to SV Raju, additional solicitor general of India and one of the lawyers representing the UP government in the case at the high court.

“Why this sudden interest now?” Raju said when we asked about the case. “The matter is subjudice. I will speak to you after the [UP assembly] election is over.”

He paused and said, “Actually, I will speak to you after the matter is over.”

According to former Supreme Court judge Madan Lokur, the case proceedings suggest two things.

“The proceedings in the high court indicate that the learned judges must take control otherwise the hearings will go on forever and all over the place,” he said. “Second, a clear impression is being conveyed by the state government that the announcements were purely for optics and no substantive relief was intended.”

‘What is the point of this special court?’

As the hearings continue, Asha’s family lives under the constant protection of 40 CRPF personnel and eight CCTV cameras. Her brothers have given up their jobs and part of their land.

“Sometimes, it feels like this is becoming our normal,” said one of her brothers. “We’ve to take permission to go in and out of our own house. What kind of life is this?”

In an interim application filed by advocate Seema Kushwaha and accessed by Newslaundry, Kushwaha pointed out that in this case, the meaning of a fast-track court was vague as the case was being dragged through “delay tactics” and that “nothing seems good which can justify the meaning of fast-track court”.

In her application, Kushwaha urged the court to “observe that there is indication to make this trial slow and make this justice delay”.

According to 2019 data from the National Crimes Record Bureau, between 2015 and 2018, Uttar Pradesh recorded the highest increase in the number of crimes against women at 66.7 percent. At the same time, India recorded a rise of 23.3 percent in crimes against women and 18.8 percent increase in crimes against scheduled castes.

As analysed by IndiaSpend in the wake of the Hathras case, in 2019, investigation against crimes against women remained pending in 33.8 percent of cases. Trials had been completed only in 7.6 percent cases and only 6.1 percent for cases of crimes against scheduled castes. Of these completed trials, more than 60 percent led to acquittals.

In August 2021, the union cabinet approved the continuation of 1,023 fast-track courts special in India – a centrally sponsored scheme adopted across 28 states and union territories. Its budget is 1,572.86 crore, of which Rs 971.70 crore will be funded by the central government’s Nirbhaya fund and Rs 601.16 crore by the states and UTs.

As of June 2021, UP has 218 of these courts in which 69,796 cases remain pending.

Kushwaha also said that after the CBI submitted its chargesheet in December 2020, the special court held hearings almost every week. “For example in March alone, eight hearings were held,” she said. “But now, hearings take place once in two or three weeks.”

In total, there are 104 witnesses of which 80 are “important”. Of this 80, 28 are designated as “most important” and have been cross-questioned by the defence and prosecution.

“I don’t understand the delay in court,” Kushwaha said. “Important witnesses have been questioned and evidence has been produced. Why is the court not giving a verdict?”

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