A 82 page report dated 15.12.15 and ; titled “Constitutional Validity of Police
Officials Existing Practice of Ordering Post-mortem Examination vis a vis 174
CrPC- A Cause of Concern” has been submitted by him to Prime Minster Shri Narendra Modi, Shri Devendra Fadnavis (Chief Minister, Home and;
Law Minister), Shri Rajnath Singh (Union Home Minister). Please click here to download full report.
SUMMARY:
Common perception of public, experts and;
even doctors is that, police are legally authorized to send the dead body for
post-mortem (PM- Dissection) examination and to collect 2-3 kgs of organs from
the body without the consent of relatives of the deceased and doctors
are performing the said work on this order of police. But, this perception is
legally totally wrong. Indian criminal procedure code (174 CrPC) doesn’t
authorize the police for the same and even has nowhere used the word
‘post-mortem’ and ‘viscera’ like other 40 countries. Section 174 (3) authorizes
police to send the dead body for ‘examination’ only but does not authorize to
do that by using reasonable force i.e., without consent of relatives.
Complete dissection of a dead body is
mutilation of it and if there is no provision in the law to do it without the
consent of relatives then it is the infringement of the rights of bereaved
family of the deceased and said violation without the procedure established by
law is unconstitutional under article 21 of Constitution of India. (In 1995
Supreme Court extended the provisions of article 21 to dead person in Parmanand
Katara case).
Except India, Pakistan and Bangladesh
there are very good laws in around 40 countries/ states for promoting effective
and scientific death investigation.
As per the Indian
law there is no authority to police to do medical examination of any victim
without his/her consent. As per Bombay High Court (in Anil Lokhande case-1981)
there was no authority to police to do examination of accused without his
consent in old law till law was amended by introducing section 53 CrPC. Even,
Supreme Court (In Ram Babu Misra- 1980) refused to grant permission to
state police to take the specimen writing of the accused on the ground that
there was no provision in the law to take it without his consent; then how one
could do the COMPLETE DISSECTION of the dead body and collect 2-3 kgs of ORGANS
from the body without consent of relatives even when there is no provision in the
law for the same.
Not amending the
117 year old law (1898) lead to:
- Unscientific,
improper investigation and incomplete post-mortem reports- one of the
reasons for low conviction rate.
- Unnecessary post-mortems even though treating doctor is able to give the cause of death. Patient
taking treatment in private hospital for natural disease condition (like
cancer) and referred to government due to his bad condition or due to
financial problems; and; dies shortly in government hospital then the
case is informed to police. In such cases though adequate hospital record
exist, unnecessary post-mortem is conducted on the orders of police).
- Though, right
to know the correct cause of death is fundamental right of the relatives (Law
Commission), PM by Forensic Medicine experts mandatory.
- Sensitive and; important death investigation by untrained police official.
- Relatives’
facing tremendous difficulties for getting copy of PM report. (It is
legally mandatory for the doctor to give the report of medical examination
of arrested person to him but not to the relatives)
Suggestions:
Like other countries our law should have following
provisions:
a. Police
to decide whether to order dissection and extent of it in consultation with
doctor.
b. Strict
measures to avoid unnecessary dissection of dead bodies.
c. Post-mortem,
preferably to be done by forensic medicine expert
d. Authority
to relative to challenge the decision of dissection of dead body even if
treatment record is available.
e. Provision
to provide the copy of PM report to relatives by doctor free of cost.
f. Death
investigation by police specially trained in scientific death investigation.
g. Rule to
maintain the dignity of dead body while transporting and during PM.
Materials studied to draft this report: Law commissions 9
report related to CrPC, CrPC applicable since 1861, 1898 and new CrPC, Coroner
Act of India, Bombay, 42 Countries laws related with death investigation.
Information collected through RTI, Supreme Court & High Court Judgement.
Conclusion:
At present, police is legally NOT empowered to send
the dead body for post-mortem examination & collection of organs without
the consent of relatives.
