Delay in conducting autopsy infringes rights of dead person: Kerala HC

Justice P.V. Kunhikrishnan pronounced the order while considering a petition filed by Kerala Medico Legal Society through advocate A Jayasankar.

While ordering the government to implement night autopsy in five medical colleges, the court directed for providing necessary infrastructure and staff within six months. Further, the court ordered the chief secretary to issue a circular within six months fixing the time limit for conducting inquest and postmortem and produce it before the court.

Disciplinary action to be taken against officials who do not complete inquests and postmortems within the time fixed should also be stipulated. Night autopsy should also be extended to other hospitals in course of time, the court directed.

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While pronouncing the judgment, Justice P.V. Kunhikrishnan observed that Article 21 of the Constitution will not only apply to a living person but will continue till their body is cremated:

The bench noted,

"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 court observed that the delay in performing autopsies affects the right of a dead person, and added that one of the reasons for the delay was the present practice in which the autopsy is conducted only in the daylight.

It said that the laws of procedure, whether it is statutory or otherwise should not affect the early burial of a dead body, if so is the request of the relatives and friends of the dead person.

The order observed,

"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."

It noted that after going through medical jurisprudence and textbooks, "it can be seen that as far as possible the postmortem examination should be performed in daylight and not in artificial light."

However, it was observed that technology has transformed since then and at present, there is infrastructure which would enable artificial daylight.

Noting that the state government is duty bound to ensure that there should be no delay in burial/cremation in case of unnatural death, the judge noted,

"According to my considered view, it is the duty of the State to complete the legal formalities forthwith if an unnatural death happened. The officials of the Government should hand over the dead body to the kith and kin of the deceased immediately. It is part of the fundamental right of a person under Article 21 of the Constitution of India to live with dignity and the dignity includes not only the dignity of a person when he is alive but also the dignity following his death. A decent burial of the dead body immediately after death without unnecessary delay in completing legal formalities is also a part of the constitutional right."

The court said that the state cannot give any reasons for performing autopsies at night time, adding, "The State cannot say that there is no adequate infrastructure or insufficient staff in the hospitals and there are financial difficulties to create such additional facilities for early completion of legal formalities in unnatural death cases."

It directed the state to provide all infrastructure forthwith including lighting facility to implement the order even if there are financial difficulties since a decent burial without delay is a fundamental right of a person even if the death was unnatural.

It ordered that night autopsies should be implemented in letter and spirit as provided in the Government Order issued in 2015 in the Government Medical Colleges immediately within six months, and to appoint more staff to the General Hospital in Kasargod.

However, the court also said that the medical practitioners should understand the financial constraints of the state as well, noting,

"If the Government is providing a minimum facility without luxury because of its poor financial condition, they should cooperate with the Government especially in a situation like the conduct of night autopsies. In other words, when the Government is providing an "air conditioned Maruti Car with full facilities", the doctors cannot claim or demand a "BMW car with its royal facilities". I made this observation not to insult the doctor's community or to underestimate their hard work and commitment."

Some of the other directions given by the court include:

• Organizing a meeting of all stakeholders by the chief secretary of the state and to fix a time limit for conducting the inquest and post-mortem in a dead body, if the death took place unnaturally or in suspicious circumstances.
• State must ensure that the legal formalities are completed immediately in cases requiring inquest and postmortem, with the dead body being handed over to the family of the deceased within a time limit to be fixed by the Government, after consulting the stakeholders.
• In unnatural death cases, the bereaved family and well-wishers of the deceased need not visit the hospital or police stations to get the dead body. Instead, the state should find ways to return the dead body to the residence of the deceased at its own cost.
• An expert committee should be established by the government as per Clause D(44) of the Kerala Medico-Legal Code in order to understand if the night autopsy facility can be extended to all the Medical Colleges and Hospitals in Kerala where autopsies are now conducted.

In 2015, the state had passed an order implementing 24 hours autopsy and accorded sanction to five Government Medical Colleges to perform night autopsies which were Thiruvananthapuram, Alappuzha, Kottayam, Trissur, and Kozhikode and also in the General Hospital Kasargod in the form of a pilot project.

Autopsies were not conducted after 5 pm till such an order was passed by the state government earlier.

The Kerala Medico-Legal Society had gone to the court against the government's decision to begin night autopsies without improving facilities, stating that the government order was not practical due to various reasons.

The KMLS argued that medical practitioners should not be forced to conduct night autopsies night autopsies until sufficient facilities like artificial lights and supporting staff are provided as per norms.

The court had eventually stayed the government order in 2016 after finding merit in the petition filed.

In a counter-affidavit filed by the Joint Secretary of Health and Family Welfare in the Court on December 1st on this petition, the state government had admitted that there is a lack of infrastructure in five medical colleges and General Hospital, Kasaragod.

It had added that an increase in the number of faculty and other paramedical staff are inevitable requirements for conducting the night autopsy.

The additional respondent had further submitted that over 50,000 post mortems are performed every year and as no postmortems are conducted after 5 PM, funerals of the ones who died of Covid-1 was delayed leading to very high health risk and social issues.

Advocates A. Jayasankar, Manu Govind, C.V. Manuvilsan and S. Sabarinadh represented the petitioner, whereas the respondents were responded by State Attorney N. Manoj Kumar, Government Pleader K.R. Ranjith, Advocates Amal Kasha, T.B. Hood, K.K. Mohamed Ravuf and A. Mohammed.

To view the original order, click on the link below:

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