Kerala High Court Prompts State To Publish Guidelines For Medical Professionals In Custodial Torture Cases

The Kerala High Court directed the State to expeditiously notify an order clarifying the procedure to be followed by medical professionals while examining accused and under-trial persons for evidence of any manner of custodial torture or injury.

Justice PV Kunhikrishnan directed so upon being informed that the State government had already initiated proceedings to issue a government order to implement to recommendations of the Justice K Narayana Kurup Commission, which had investigated a custodial death that occurred in the State.

The Court, therefore, asked the government to issue orders taking these recommendations and inputs from relevant stakeholders into consideration within two months.

Until such time doctors are free to conduct any medical test as they deem fit to detect internal injuries from possible custodial torture, the Court clarified.

Background: 

After the custodial death of Rajkumar in 2019, Justice Narayana Kurup being the Judicial Commission came up with certain recommendations to be followed by the police, doctors, and jail authorities on 5th January 2021.

The commission had reported that the failure in reporting the internal injuries of the accused is the reason for the custodial torture and custodial death and therefore recommended certain measures that may be implemented so as to detect and prevent such incidents in the future.

As per these recommendations, the doctors were to conduct specific tests to detect hidden injuries, citing that failure to report internal injuries was the main reason behind custodial torture and consequent deaths. The tests suggested were a renal profile, creatine phosphokinase, urine myoglobin, c-reactive protein, ultrasound scanning of abdomen.

The government accepted the recommendations, and consequently, the Director of Health issued a Circular on 4th June 2021 mandating medical officers to conduct the aforementioned tests on every accused person.

The petitioner, a government doctor, represented by Advocate R Gopan, contended that this circular was issued without a cogent understanding of the recommendations of the judicial commission.

According to the petitioner, the recommendation only suggested that these tests should be conducted if the doctors suspected an internal injury after the preliminary medical examination.

Pursuant to the aforementioned circular, the Superintendent of the Kannur jail issued a similar circular dated 12th June, mandating that the accused shall only be admitted once they verify that the prescribed tests have been performed on him.

However, soon after this second circular, the Director of Health issued another circular declaring that its first circular was kept in abeyance until further directions.

After this, the petitioner was in dilemma as to whether this disallowed medical practitioners from conducting the necessary tests if they deemed necessary. This was the preliminary question in the petition. She filed several representations seeking to clarify the same, but they were not responded to.

The plea further said that even if in the medical examination they suspect a serious internal injury, they might not conduct tests to verify the same or refer the patient to the Medical Board for detailed examination, all due to the absence of specific direction or circular from the Health Department.

It was also alleged that often, the police was insisting that the doctors examine only external injuries, even going to the extent of harassing them to confine them to such examination alone.

The Government Pleader submitted that in July 2021, a meeting had been convened by taking into consideration reports from various stakeholders and experts, including the representation submitted by the petitioner to discuss the matter of medical examination and investigation of under trial persons.

The affidavit submitted by the government stated, "On the basis of suggestions put forth by the participants, it was decided to modify the relevant portion of the Government order dated 17.02.2021, preferably by insisting that higher investigations and tests can be carried out based on the recommendations of the medical officers, evaluating a custodial person so that two to three stages of investigations can be specified.

It is also decided to obtain detailed and specific comments of the Health and Family Welfare Department to proceed further in amending the Government Order."

The State also submitted that the amendment to the Government Order will be issued after considering all the suggestions that came up in the meeting and looking into the prayer of this writ petition and relying upon the guidelines for medico-legal examination of an arrested person as prescribed by the National Human Rights Commission.

Therefore, the Court directed the State to conclude the proceedings already initiated as per the affidavit and issue an amended order within a period of two months.

Also Read: Medical Practitioners Can Conduct Necessary Tests On Accused If There Are Indications Of Custodial Torture: Kerala High Court

Case Title: Dr. Prathibha K v. State of Kerala & Ors.

Click Here To Read The Order