Article 21 Applies Till One's Body Is Cremated: Kerala High Court Directs State To Supply Facilities To Perform Night Autopsies

The Kerala High Court on Thursday directed the State government to provide adequate facilities and staff in all the Government Medical Colleges in the State to facilitate the conduct of night autopsies in the said institutions.

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 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 Bench found that the delay in conducting an autopsy infringes the rights of a dead person and that one of the reasons for the delay was the existing practice of the conduct of autopsy only in daylight.

The Court also noted that the laws of procedure, whether statutory or otherwise cannot be a hurdle for an early burial of a dead body, if the relatives and friends of the dead person requested for the same.

In this regard, the Judge observed that the first hurdle for the delay in handing over the dead body to the relatives is perhaps the timing scheduled for the conduct of the autopsy.

From time immemorial, there is a belief that autopsy cannot be conducted during the night and should be conducted in broad daylight. Going through medical jurisprudence and textbooks, the Bench found that it has been suggested that as far as possible the postmortem examination should be performed in daylight and not in artificial light since verification of colour matching is more accurate in natural light. 

However, it was also stated that technology had undergone quite an upgrade since then. In fact, today, there exists infrastructure to provide artificial daylight.

Therefore, the Judge took the view that the State government was duty-bound to ensure that there was no delay in burial/cremation in case of unnatural death: 

"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 added that the State cannot take a stand that it cannot provide the required facilities citing financial constraints for this reason. It was directed that the Government should provide all minimum infrastructure including lighting facility to implement the order even if there are financial difficulties forthwith since it is the fundamental right of a person for a decent burial without delay even if his death was unnatural.

As such, it was directed that night autopsy should be implemented in letter and spirit as provided in the Government Order issued in 2015 in the Government Medical Colleges expeditiously within 6 months and to equip the General Hospital in Kasargod with more staff.

However, the Bench clarified that the medical experts should also understand the present financial constraints of the State:

"...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."

Other Directions Issued:

• 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.  
• In cases requiring inquest and postmortem, the State must ensure that the legal formalities are completed forthwith and the dead body is handed over to the kith and kin of the deceased within a time limit is to be fixed by the Government, after consulting the stakeholders.
• The bereaved family members and the well-wishers of the deceased need not go to the Police Station or the hospitals to get the dead body in unnatural death cases. The State must immediately find means to return the dead body to the residence of the deceased at the cost of the State.
  • The Government should constitute an expert committee as per Clause D(44) of the Kerala Medico-Legal Code to find out whether the night autopsy facility can be extended to all the Medical Colleges and Hospitals in Kerala where autopsies are now conducted. 

Background:

 The State passed 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. 

Till this order was passed, autopsies were not conducted after 5 p.m. 

The Kerala Medico-Legal Society had approached the court against the government's decision to start night autopsies without improving facilities and argued that the GO was impractical for several reasons. 

The KMLS had prayed that the doctors should not be compelled/forced to perform night autopsies until sufficient facilities like artificial lights and supporting staff are provided as per norms.

Finding merit in the contentions of the petitioners, the Court stayed the GO in 2016.

The State government had also admitted to lack of infrastructure in five medical colleges and General Hospital, Kasaragod, in a counter-affidavit filed by the Joint Secretary of Health and Family Welfare in the Court on December 1st on this petition.

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

It was further submitted by the additional respondent that about 50,000 postmortems are done every year and since no postmortem is conducted after 5 pm, funerals of even those persons who died of COVID-19 were delayed, causing very high health risk and social issues. 

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

Case Title: Kerala Medico-Legal Society & Anr. v. Government of Kerala & Ors.

Click Here To Read/Download The Order