Police has no legal power to send the dead body for dissection (Post-mortem) and collection of organs from it. No proper law has resulted into the conduction of unnecessary post-mortems (Full dissection of Dead Body) on the orders of police.

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:

1. Unscientific, improper investigation and incomplete post-mortem reports- one of the reasons for low conviction rate.
2. 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).
3. Though, right to know the correct cause of death is fundamental right of the relatives (Law Commission), PM by Forensic Medicine experts mandatory.    
4. Sensitive and; important death investigation by untrained police official.
5. 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: To invite the suggestions from the police & other concerned department, public, legal experts, judges, NGOs, Bar Councils, forensic science experts, Forensic Medicine Experts and associations of forensic medicine, etc while drafting the law in this regard.

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. 

MGIMS develops unique Medical Certificate of Cause of Death (MCCD) Software under HIS. He was given responsibility to coordinate this project by Dr. SP Kalantri (Medical Superintendent).