Decent Burial Without Delay A Constitutional Right: Kerala High Court

Right to dignity and fair treatment holds after death, and laws of procedure cannot be a hurdle to an early burial even it is a case of unnatural death, the Kerala High Court said on Thursday while directing the state to provide adequate infrastructure in five government medical colleges to carry out night autopsies.

The High Court said that "nowadays, in cases of unnatural death, bereaved family members as well as people's representatives -- like MLAs, Panchayath presidents, and ward members -- can be seen queuing outside the police stations and hospitals for early conduct of inquests and post-mortems, respectively, for early release of the body so that they can pay their respects and carry out the last rites".

The first hurdle, the court said, in getting the body to the relatives was probably the autopsy timings as "from time immemorial" post-mortems have been conducted during the daytime  - there has been a belief that such procedures can't be done at night.

The court also noted that in cases of unnatural death, even the inquest proceedings take time as "the police authorities will not reach immediately" and thereafter, an authorized or senior officer conducts it "after a long time".

It also said that the Health Department had issued an order in 2015 for implementing 24 hours autopsy and accorded sanction for post-mortems at night in five Government Medical Colleges namely, Thiruvananthapuram, Alappuzha, Kottayam, Thrissur, and Kozhikode, and also in the General Hospital Kasaragod as a pilot project.

The court said that after issuing the order in 2015, the government did not withdraw it but was even now saying that there were no infrastructure facilities for implementing night autopsy.

"This stand itself is surprising. What has the government been doing for the last six years," it asked.

Justice P V Kunikrishnan said it was the duty of the state to complete the legal formalities forthwith if an unnatural death happened and the officials of the government should hand over the body to the kith and kin of the deceased person 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. Society should not be permitted to show any disgrace to the deceased."

"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 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," the court said.

The High Court directed the state government, its Director of Health Services, and its Health Department to do the needful to "forthwith" implement the 2015 order and allow night autopsy at the five government medical colleges at Thiruvananthapuram, Alappuzha, Kottayam, Thrissur, and Kozhikode.

It also directed the state to ensure that adequate infrastructure, as well as medical and paramedical staff, is provided at the five government medical colleges as expeditiously as possible and at any rate, within 6 months from receipt of the judgment.

The court said medical experts also should understand that the financial condition of our state was not good.

"..if the government is providing a minimum facility without any luxury because of the 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'," the court said.

Besides that, the Chief Secretary of Kerala was asked to "convene a meeting of the officials of the Home Department including the State Police Chief and the officers of the Health Department to see that the inquest and post-mortem of a body which is involved in unnatural death cases are completed within a time limit." "The Chief Secretary will issue a circular fixing the time limit for conducting the inquest and also fixing a time limit for conducting the post-mortem. It should be done within six months from the date of receipt of this judgment and a copy of the same should be produced before the Registrar General of this court," Justice Kunikrishnan said in his 42-page judgment.

The judge said that the Chief Secretary should also order that once an unnatural death is reported it is the duty of the state machinery to complete the inquest and post-mortem within the fixed time frame and the body should be released to the bereaved family.

"In the circular, it should be mentioned that disciplinary proceedings will be taken against officers who delayed the conduct of inquest and post-mortem within the time limit to be prescribed by the Chief Secretary," the court said in its judgment.

The court said that the Chief Secretary should also declare in the circular that the expense for taking the body in unnatural cases to the hospital for post-mortem and to other places if necessary for conducting the inquest should be at the state expense.

It further said that the state government will constitute a committee as per Kerala Medico-Legal Code to find out whether the night autopsy is possible in all the hospitals, where the facility is available and "if the experts recommend the same, the government will accept the same and will do the needful".

With these directions, the court disposed of the plea moved by the Kerala Medico-Legal Society seeking directions to the state to provide the manpower and facilities for implementing the 2015 order of the Health Department.

The petitioner society had also sought directions to the state not to compel its members to perform autopsies on a 24-hour basis till the personnel for conducting autopsies and essential infrastructure are made available.