Sanjeev Kr. Singh
(Ed. note: The author is the programme coordinator of Manabadhikar Suraksha Mancha [Masum]based in Howrah, West Bengal.)
Forensics and Human Rights
There is a greatly felt need to hold talks with forensic and legal professionals to discuss the interplay between forensic science and human rights. Intellectuals must come forward to evaluate the role of post-mortems and its relation with the criminal justice system, for the extent to which forensic science is used in criminal investigations has a direct bearing on the scale of human rights violations, particularly torture as it is the most common method of criminal investigation used by police officers in India. Even in those countries that have ratified the U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the International Covenant on Civil and Political Rights (ICCPR), which also absolutely prohibits torture, torture is still widespread.
To deny the use of forensic science in criminal investigations itself amounts to a serious human rights violation as it permits the continuation of flawed and violent methods of policing and their attendant abuses. If the perpetrator of a crime or a gross abuse of human rights is not detected because of an improper forensic analysis—either inadvertently or deliberately—the victim is bereft of an avenue through which to pursue a remedy. Where effective remedies are not forthcoming, crime and human rights abuses are further encouraged. Thus, any state in India that is serious about preventing crime and protecting human rights is obliged to improve the quality of criminal investigations, which means using the expertise of forensic science scientifically and extensively, which should be available not only in the capital of the state but in public hospitals throughout the state.
Governments are very reluctant to grant further funds to develop their primary necessities, and thus, forensic science is a very neglected area of governmental bodies. In most places, the police control all areas of criminal investigation; in a few, the public prosecutor shares power. In many places, the law has not described the role of forensic professionals in detail; in most, their presence in criminal investigations is not obligatory. The result is that the police or prosecutors use forensic experts very sparingly. Unless systemic changes are made to expand the role of forensic professionals and delimit the power of the police over criminal investigations, this deficiency is unlikely to change.
The shortage of forensic professionals in most parts of India is another serious concern. Nowhere are there enough qualified people available to afford proper services to the public. As a consequence, many suspicious deaths are not properly investigated. Murders and extrajudicial killings may go undetected or be deliberately concealed in the absence of the necessary staff. Thus, corruption finds its very prosperous space supported by the nexus between the police, doctors and the offenders themselves. Increasing the number of forensic experts is therefore a key challenge.
Obstacles to the wider use of forensic science in criminal investigations must be understood as obstacles to the protection of human rights and must thus be addressed by governments and the public. It has also been noted that in territories where forensic science has become an integral part of criminal investigations it has been due largely to the presence of people who have dared to speak out. Wherever people do not speak openly because of repression or other reasons, poor criminal investigations and human rights abuses persist.
Forensic specialists should themselves play a much more active role in influencing public opinion towards change. They must talk to people more directly and make them aware of the benefits when independent forensic science facilities are available. They must use the media and other channels for far-reaching communication, both as educators and reformers. Because they are in a better position than others to inform the state and the public on the manner in which criminal investigations can be improved through the use of forensic science, they should take advantage of this position to speak with authority and influence.
Autopsy means "see for yourself." It is a special surgical operation, performed by specially trained physicians, on a dead body. Its purpose is to learn the truth about the person's health during their life and how the person died. There are many advantages to having an autopsy. Even when the law does not require it, there is always something for the family to learn about the death.
A pathologist is a physician with a specialty in the scientific study of body parts. This additional education always includes a year or more learning to do autopsies. Under the laws of most states, the government can order an autopsy. A coroner is a political position while a medical examiner is a physician, usually a pathologist. Exactly who makes the decisions, and who just gives advice, depends on the jurisdiction. Autopsies can be ordered in every state in India when there is suspicion of foul play. In most states, an autopsy can be ordered when there is some public health concern, i.e., a mysterious disease or a worry about the quality of health care. In most states, an autopsy may be ordered if someone dies unattended by a physician (or attended for less than 24 hours) or if the attending physician is uncomfortable signing the death certificate.
Post-mortems play the most decisive role in resolving a case. A post-mortem is required in cases of unnatural deaths, which fall under mainly two categories, i.e., homicides and suicides. It is required to find out the cause of the unnatural death. Autopsy surgeons, specially trained and authorised for this role, must perform the autopsy, and the procedures designed to carry out the post-mortem must be followed properly. In a post-mortem report, there must be a serial number with a specific date, details of the findings and the opinion of the medical officer as to the cause of death with remarks by a civil surgeon whose signature must be placed under the official seal.
India's Legal Provisions on Post-mortems
Section 174 of the Criminal Procedure Code (CrPC) of 1973 deals with unnatural deaths and thus relates to inquest reports and post-mortems. In this section, it is provided that, "when there is any doubt regarding the cause of death or when, for any other reason, the police officer considers it expedient so to do, he shall, subject to such rules as the state government may prescribe in this behalf, forward the body with a view to its being examined to the nearest civil surgeon or other qualified medical man appointed in this behalf by the state government."
However, in practice, reality is far from these words. It is seen that untrained doctors from any branch are involved in the procedures of post-mortem. They are not especially trained but are chosen from their other duties on a particular day. They just sign the reports, and the entire activities are performed by Doms—Untouchables under the caste system in the Hindu community.
A post-mortem report is the best evidence of an unnatural death. As a result, it is always admissible in evidence before the court as an expert's opinion. It should be kept in mind that each criminal case has two major parts—the presentation of evidence and the presentation of witnesses. When an autopsy surgeon is summoned by the criminal court as a witness, the narration of their findings is an expert's opinion; and when they corroborate these findings with a post-mortem report, this report becomes a most reliable document in the eyes of the law. Unless their statement is challenged by any other reasonable views or documents, the statement of an autopsy surgeon cannot be challenged in court.
In West Bengal, these procedures are negligently implemented. Most of the morgues in the state, whether they are under the jurisdiction of subdivisions or districts, have been converted into places that not meant for any medical purpose but rather are a hub for simply transmitting diseases. Theoretically, there are excellent procedures written about how to maintain the morgues in a good condition, but generally, conditions in morgues are far from these standards.
Dead bodies, for example, are preserved in refrigerators so that they do not become rotten or decomposed, but the refrigerators often do not work for long hours. Mice even nibble at dead bodies in the morgues!
Moreover, there is an acute unavailability of expert autopsy surgeons in the morgues, and the surgeons who are made to do the post-mortems do not possess the proper qualifications. Any surgeon can perform a post-mortem, provided they undergo specific training or attain a diploma; but in practice, very few of them have received this training. When post-mortem work is posted, any surgeon on duty is asked to do the post-mortem without anyone knowing whether they are trained to perform the port-mortem. Post-mortems, for instance, have even been conducted under the supervision of dentists!
Instead of a qualified medical person, it is rather felt that an expert surgeon should not be deployed to do post-mortems. Thus, post-mortems are conducted by the Doms, who have gained entry to the morgues to do such work as to take the body inside and put it into the refrigerators, put it on the dissecting table and then to take it to the family of the deceased. In practice though, they perform the whole post-mortem, and the surgeons just put their signature on the report. It is thus not surprising that post-mortem reports have many times been challenged on strong grounds.
Case Studies of Inquests and Post-mortems
Basirhat Subdivisional Hospital
On July 20, 2005, after receiving information from the Basirhat Subdivisional Hospital, the human rights organisation Manabadhikar Suraksha Mancha (MASUM) conducted some preliminary fact-finding and found that there was an accumulation of 150 dead bodies, and most of them were decomposed and nibbled by cats, mice, kites, vultures, etc. On further inquiry, some horrible practices of the state administration were revealed. It is alleged by the Doms, Lakhan Dom and Jogiya Dom, that in the Basirhat morgue there were more than 150 dead bodies. Most of the bodies are unidentified and unclaimed. Some of the dead bodies were kept in the morgue for more than three years. It was also observed that most of the dead bodies were fully decomposed. Few human bodies were there with any flesh; only their skeletons were there.
It was also discovered that the morgue had no door or windows and the roof had large holes. MASUM's inquiry revealed that the door, the windows, the iron grill and gate over the veranda had been stolen many years ago; and until now, no action has been taken. The fact-finding report also disclosed that the deep fridge and air conditioner had also not been functioning properly for a long time.
Dr. Pinaki Chakrabarty, superintendent of the hospital, who seemed to be very nervous and tried to absolve himself of all kinds of improper procedures in the hospital and morgue, told the MASUM team that he joined this hospital a month earlier, and thus, he should not be held responsible for all of the previous problems. This attempt to pardon himself of any responsibility for the shortcomings that the team found, however, was merely an excuse as the mismanagement of the hospital administration was the result of a callous and irresponsible attitude. He also told the team that the morgue comes under the jurisdiction of the civil administration, and the hospital superintendent has to depend on the subdivisional officer (SDO) for each and every decision. He said that because of the lack of coordination between the civil administration and the Dept. of Health that all morgues suffer this fate.
Lakhan Dom, an Untouchable who is about 32 years old, is actively involved in post-mortems as he dissects the body. He said that he is not a staff member of the hospital or any department of the government, but he is given 500 rupees (US) per month by the SDO in Basirhat.
Meanwhile, Jogiya Dom, about 55, is a permanent staff of the hospital and receives a salary of 6,000 rupees (US4) a month and is actively involved as well in conducting the post-mortems. He told the team that he has to do all the tasks of post-mortems; doctors just signed the report. He said that for the cremation of a dead body the government had fixed a rate of 48 rupees (about US) per body, which was an improvement over the earlier figure of 22 rupees (US$.49). This money, however, is not paid to them. As a result, they have little interest in this work. He added though that he demanded and collected 250 rupees (US.50) per body from each family.
The post-mortem report of Mausumi Ari was done by Dr. Gouranga Biswas, an anesthetist attached to the Diamond Harbour Hospital, on Oct. 26, 2003. In his post-mortem report, Dr. Biswas observed that there was no mark of injury on the body except "one non-continuous oblique ligature mark high up in the neck with a gaping below the left mandible about three inches with printed sari." Note that the autopsy surgeon, most surprisingly, supplemented his findings, stating that the "non-continuous oblique ligature mark" was caused by a "printed sari." His report clearly indicated the case to be suicidal in nature.
Instead of cremating Mausumi's body upon getting it from the morgue, and against all religious customs and social traditions, her parents took the unprecedented step to bury their child. Thus, 70 kilograms of salt was purchased from a local grocery. They dug a hole in the courtyard of their ancestral home, covered the dead body with plastic sheets and buried it in this eight-foot pit that was then filled with the salt.
After making these preparations, the second post-mortem was ordered by the court of the subdivisional judicial magistrate of Diamond Harbour, and the first post-mortem report was later challenged.
The second post-mortem was performed by a team of doctors led by Dr. A. K. Gupta, professor of the Medical College in Calcutta and head of forensic and state medicine, and Dr. L. K. Ghosh, an associate professor in the same department.
In the second post-mortem report dated Jan. 3, 2004, Dr. Ghosh found numerous injuries on the body and reported that "death, in my opinion, appears to be due to the effect of an intracranial injury due to forceful impact on the head with a hard blunt agent or hard rough surface."
Unlike the first post-mortem report, the term "printed sari" has nothing to do with the post-mortem in this case. If someone uses a sari to hang themself or strangle others, the girth of the rope (it can be made by also twisting the sari) is important and worth mentioning. It is really a mockery of the system that post-mortems, being such a vital part of investigations, are regularly done so negligently and uncaringly.
In this particular case, police reached the place where Masumi was injured and took her to the police station, tying her in a rickshaw instead of immediately taking her to the hospital. An eyewitness said that Masumi could have been saved if she had been promptly given proper medical treatment. It is not the duty of the police to decide whether the injured is dead or live. Rather, it is their first and foremost duty to admit the injured to the hospital. Instead, in this case, Masumi's half-conscious body was lying under a tree outside the police station while the police made all her relatives sit for formalities as they were shouting for the police to hand over her body so that they could admit her to the hospital themselves.
This case has been a milestone in seeking the reform of inquests and post-mortems in West Bengal. It has had an impact because the victim's family did not accept the results of the first post-mortem report, and Masumi's father, a fish trawler, wrapped his dead daughter's body in salt and buried her after deciding to try and attain a second post-mortem. He fully realised that he was not going to get a satisfactory result from the police officers and doctors involved in the first post-mortem. He did not know, however, that the second post-mortem could not be done without government permission. He listened though to his inner voice and ultimately approached MASUM for assistance. As a result, on the basis of the second post-mortem report, the victim's family finally has received some hope that justice will prevail.
It should also be clearly understood that this significant procedure of post-mortems is hampered because of a lack of coordination between departments. The morgues fall under the jurisdiction of the civil administration—the Dept. of Home Affairs—and not the Health Dept. However, when questions arise for improving the morgues, no proper steps are taken between the departments for timely coordination. Instead, there arises the problem of authority and responsibility.
In India, the morgue is often a part of the civil administration, and the SDO is responsible for its maintenance. A copy of the post-mortem is kept with the investigating officer of the case, who might be the assistant subinspector, subinspector or inspector of a police station. This police officer may be the perpetrator but becomes the custodian of the post-mortem report, a person who, for many reasons, the victim or their family must face again and again.
This provision has its roots in the Police Act of 1861, for India's so-called efficient governing body has still not kept itself aloof from the tradition begun by the British in 1861 through the Police Act. It is worth mentioning here that the change in the system that took place in 1858 was not a boon and blessing to Queen Victoria who ascended the throne in the same year. Actually, it was a time when quite a few memorable historical events, e.g., the Battle of Plassey in 1757 and the First War for Independence in 1857, were over, and the British had experienced India's vigour towards achieving independence. They were in great need of an efficient policing system so that the revolts could be curbed. It was essential that more powers be vested in the police, and hence, almost all of the important sections of administration directly associated with the people's activities were put under the police. Since post-mortems play a vital role in deciding the cause of unnatural deaths, the police were given an effective tool to determine how these unnatural deaths occurred, but today this tool is ineffective because it has been not respected and used properly.
Today it is necessary to seriously think about putting post-mortems under the administrative control of the Dept. of Health and thus freed from the clutches of the police. Human rights defenders have a responsibility to mediate and expand contact between forensic experts and the public. To do undertake this task, they must learn more about the obstacles to forensic science becoming an integral part of criminal investigations and what this means for their own work. Where human rights groups limit talk to generalities and avoid going into the details of how to apply theories and instruments of human rights, they are unlikely to affect any significant changes in the complex relations that permit continued abuses in most parts of Asia. For its part, MASUM will be pursuing a serious discussion on the relationship between forensic science and human rights and is committed to take it to a larger audience throughout the state of West Bengal and the country of India.
Posted on 2005-12-09