Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Ker) 1049

IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.V.KUNHIKRISHNAN, J.
Kerala Medico Legal Society, Represented By Its Secretary Dr.Hitesh Sanker T.S., S/o.T.M.Sankaranarayanan – Appellant
Versus
The Government Of Kerala Represented By Its Chief Secretary, Secretariat, Thiruvananthapuram-695001. – Respondent
WP(C) No. 33874 of 2015
Decided on : 16-12-2021

Advocates:
Advocate Appeared:
For the Appellant : SRI.A.JAYASANKAR, SRI.MANU GOVIND, SRI.C.V.MANUVILSAN, SRI.S.SABARINADH
For the Respondents: SRI.N.MANOJ KUMAR, STATE ATTORNEY SRI.K.R.RANJITH, SRI. K.K.MOHAMED RAVUF, SRI.AMAL KASHA, SRI.T.B.HOOD SRI.A.MOHAMMED

Point of Law : Once an unnatural death is reported, it is the duty of the State machinery to complete the inquest and postmortem within a time frame and the body should be released to the bereaved family, after the inquest and postmortem within a time limit, to be prescribed by the Chief Secretary and it should also be mentioned in the above circular.

Headnote:
Constitution of India - Article 21 – Unnatural Death - Burial of a dead body of a human being - Delay in getting the dead body to the relatives – conducting postmortem in hospitals after sunset fulfilling the fundamental requirements - Duty of the State to complete the legal formalities forthwith if an unnatural death happened.
Finding of the Court;
There is a purpose for the early conduct of inquest and postmortems. If the inquest and postmortem are not conducted immediately, some injuries in the dead body may disappear and the body itself will decompose. According to me, a joint effort from the police department and the health department is necessary for the immediate conduct of inquest on a dead body and the autopsy if an unnatural death happened. There is no time limit is fixed for conducting the inquest and the post-mortem to be conducted by the police and authorised doctors. According to me, the Chief Secretary of the State should convene a meeting of all stakeholders and fix a time limit for conducting the inquest and post-mortem in a dead body, if a person died in suspicious circumstances or if it is an unnatural death - There is no scope for doubt any more that the right to life enshrined in the Article 21 of the Constitution of India includes the right to life with dignity - Moreover, living with dignity includes not only the dignity of a person when he is alive but also the dignity following his death. The right to dignity and fair treatment under Article 21 of the Constitution is not only available to a living person but also to his mortal remains after his demise – certain fundamental rights available in our constitution to a person will continue even after his death. The State cannot take a stand that since there is financial difficulty, the State cannot provide adequate infrastructure for night autopsies to all the Government Medical Colleges and other hospitals. The delay in conducting an autopsy will infringe the rights of a dead person. One of the reasons for the delay in conducting an autopsy is the existing practice of the conduct of autopsy only in daylight. Therefore the night autopsy permitted in Exhibit P4 is to be implemented in its letter and spirit. When there is an unnatural death, inquest, and postmortem are necessary to a dead body. In such situations, the State must do the needful to see that the legal formalities are completed forthwith and the dead body is handed over to the kith and kin of the deceased person within a time limit, which is to be fixed by the Government, after consulting the stakeholders.
Result: Directions issued

JUDGMENT :

The right to dignity and fair treatment is not only available to a living man but also to his dead body. A decent burial of a dead body of a human being immediately after the death, if intended by the kith and kins of that person is far more important than certain legal formalities to be conducted if it is an unnatural death. The obligation of the State to do the needful in such a situation is paramount. The laws of procedure, whether statutory or otherwise can not be a hurdle for an early burial of a dead body, if the relatives and friends of the dead person requested for the same. Nowadays if unfortunately, an unnatural death happened in a family, the bereaved family members of the dead person can not sit in their house, but they have to stand in a queue in front of the police station for early conduct of the inquest of the dead body and thereafter in front of the hospital authorities for early conduct of the postmortem. This is not only the worry of the bereaved family of the dead person but the representatives of the people like local M.L.A(Member of Legislative Assembly), Panchayath presidents, Ward members etc. Everybody will be either in the police station or in the hospital to get the dead body released early so that the relatives can see the dead body finally and they can pay homage to it and do their customary religious rights as per their religious belief.

2. The first hurdle for the delay in getting the dead body to the relatives is probably the timing scheduled for the conduct of autopsy which is to be done by Medical experts. From time immemorial, there is a belief that autopsy can not be conducted during the night and it is to be conducted in broad daylight. If we go through the medical jurisprudence and Toxicology Textbook of Mody, it can be seen that as far as possible the postmortem examination should be performed in daylight and not in artificial light. According to medical books, the verification of colour matching is more accurate in natural light than in artificial light. According to the old medical jurisprudence book, the differentiation of various colours under artificial light is misleading and all the striking colours can't be made out easily at night under artificial light. Since much water has flown below the bridge, the technology is now completely changed. The State of Kerala came with a brave decision by way of a Government order in 2015 implementing 24 hours autopsy and accorded sanction to conduct night autopsy in five Government Medical Colleges namely, Thiruvananthapuram, Alappuzha, Kottayam, Trissur, and Kozhikode and also in the General Hospital Kasargod as a pilot project. The M.L.A fund is directed to be utilised to start the facility in Government Hospital, Kasargod. Exhibit P4 is the order.

3. When the above Government order was notified, the Kerala Medico-Legal Society represented by its Secretary and another Doctor who is a member of the Forensic Medicine Faculty of Kottayam approached this Court with the following prayers:

“i. issue a writ in the nature of Mandamus commanding the Respondents to provide the manpower and facilities, as contemplated in Exhibit P4, within a time frame to be stipulated by this Hon'ble Court;

ii. Issue a writ in the nature of Mandamus directing the Respondents not to compel the members of the Petitioner Society for performing autopsies on a 24-hour basis, unless the personnel for conducting autopsies and essential infrastructure are made available;

iii. Pass such any other direction, order or reliefs, as this Hon'ble Court may deem fit in the interest of justice, equity and good conscience.”

4. Ext.P4 is the Government Order, G.O(MS) No.239/H/FWD dated 26/10/2015 of the Government of Kerala allowing night autopsy in five Government Medical Colleges and at General Hospital, Kasargod. According to the petitioner, Ext.P4 order is impracticable due to the following reasons.

“i. Police Surgeons will have to attend Court frequently to give evidence. The Pol

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2021 Supreme(Ker) 1049

Cases Referred (1)