INDIA: AHRC letter to the President of India regarding the horrendous practices during forensic examinations in West Bengal

Dear friends,

Asian Human Rights Commission reproduces the letter which has been sent to the President of India by Basil Fernando, Executive Director of AHRC today regarding the horrendous practices during forensic examinations in the state of West Bengal. The letter has also been sent to the Chief Justice of Supreme Court of India, Home Minister of India, National Human Rights Commission of India, Chief Justice of Calcutta High Court, Chief Minister of West Bengal State Government, Home Minister of West Bengal State Government and State Human Rights Commission of West Bengal. 

The condition of the procedure for post-mortem examinations in West Bengal is unreliable. Most morgues in the state are located in sub-divisional and district hospitals. The conditions defy description: without air conditioning and freezers, or other equipment to deal with the bodies, corpses rot within hours. Even though the doctors must do the post-mortem examinations according to Indian laws, in fact this is left to a caste group, the Dom, a sub-group of Dalits (so-called untouchables) officially assigned the task of handling the dead bodies. The Doms, who are usually completely uneducated open the bodies with hammers, rusty nails and axes, and call out what they see to the doctor, sitting 30, 40 or perhaps 50 metres away. The doctor then records their observations, and the body parts are discarded. Failure to treat a victim’s body with due respect and diligence is a serious violation of the rights of the dead and their family. (Refer to the photos of the bodies discarded after post-mortem from the Srirampur Government Hospital, Hooghly, West Bengal; Photo 1, Photo 2) 

However, more serious problem is that the failure of the system for post-mortem examinations is deeply connected to the failure of legal system in West Bengal. In many cases, the perpetrators manufacture false post-mortem reports with close cooperation with the doctors and the police. Then, these false reports are used as important evidence in court. In result, the perpetrators enjoy the impunity without any punishment. 

In particular, in terms of the cases of torture or custodial death committed by the police, the situation is worse and these abuses tend to be corrupted systemically. AHRC has pointed out this matter and urged the government of India to ratify the UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT). (To see the statement, please visit: AS-03-2004: Custodial deaths in West Bengal and India’s refusal to ratify the Convention against Torture) 

AHRC request you to send a letter to the Government of India to ratify the Convention against Torture without delay, and bring it into domestic law together with the necessary institutional changes to see it implemented. When acts of torture and degrading treatment by the police are at last treated with the gravity they deserve, so too will custodial deaths diminish, cases properly investigated, victims properly compensated, and perpetrators punished.

Urgent Appeals Desk
Asian Human Rights Commission (AHRC)
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Letter by Basil Fernando, Executive Director of AHRC to the President of India

23 March 2004

A letter by the Asian Human Rights Commission -AHRC

To
Dr. A.P.J. Abdul Kalam
President of the Republic of India 
Office of the President, 
Rashtrapati Bhawan, 
New Delhi, 110004 
INDIA

Fax: +91 11 3017290, 3014570
Email: presssecy@alpha.nic.in or Pressecy@Sansad.nic.in 

Dear Sir

The Asian Human Rights Commission is concerned about the horrendous practices during forensic examinations at the government hospitals in the state of West Bengal, India.

At the Srirampur Government Hospital of Hoogly District, West Bengal, Mr. Ratan Dom conducts the autopsies (if one can call it an autopsy). Even though Dr. Gaffar is the forensic surgeon responsible for the examination of the bodies, in practice Mr. Ratan conducts the autopsy.

According to reliable information received Mr. Ratan is a government employee appointed for carrying corpses in the mortuary. He conducts the ‘postmortem examination?with crude instruments like rusted knifes and hammer.

After the ‘postmortem examination’ the bodies are left without even suturing the incisions. The bodies are kept on open floor without any protection and they are left to rot in the open humid environment and it is common that body parts are eaten away by rats and dogs. The relatives of the deceased are to pay ‘extra incentives’ to Dr. Gaffar and to Mr. Ratan if they were to conduct a proper autopsy. It doesn’t mean that even if the ‘incentives’were paid the autopsy would be conducted in scientific manner in terms with the legal procedures respecting the etiquettes. It only guarantees suturing of the body after the postmortem examination. The attached photographs show how the bodies are handled in this particular hospital. Information reviles that this is not the only hospital in which dead bodies are handled in such fashion. It is the general practice in all government hospitals. 

The very inhuman nature in which the bodies are handled and left to rot is an indicator of human values in the state and how far they are enforced and respected. It is also a pointer to the depth of exploitation, torture, neglect and corruption. It also indicates how much priority is given by the state for prevention of crime and protection of rights within the state. It is also clear indicator of the resources earmarked for prevention of crime and administration of justice in a ‘welfare state’.

Torture is a crime and is one of the most heinous crimes against humanity. Callousness in handling dead bodies as mentioned above and exploitation of death is also a crime that comes under the ambit of the term ‘torture’ according to the UN Convention against Torture. India has abstained from ratifying the convention on the ruse that the domestic legislations within the country are adequate to prevent torture in the country. However the above facts paints a different picture.

The purpose of forensic examination is not only to find out the cause of death but is also a process which helps to do justice to the deceased and her/his family. In cases of suspicious death where the result of an autopsy is vital, one can imagine how far the purpose of justice is served in conditions as are prevailing at Srirampur Government Hospital.

Even if forensic examinations are held in proper manner the records are handled by police officers on deputation to courts. The unchallenged access to case records by the police officers on deputation to courts is yet another serious hindrance to delivery of justice in the state of West Bengal. This must end.

AHRC is aware that the Government of India is planning to restructure its criminal legislations in tune with the notorious Malimath Committee Recommendations. At this juncture it is pertinent to note the response from the Calcutta High Court signed by Mr. Nure Alam Chowdhury, J., Mr. Debi Prasad Sengupta, J., and Mr. Narayan Chandra, J. to the committee’s  questionnaire.

Question. “7.6. Do you agree with the fact that Prosecution should place greater reliance on forensic evidence?”
Answer. “No. Too much of reliance on forensic evidence may lead to disaster. Man falters ?sometimes machines falters dangerously, leaving no scope for rectification. But for detection of the criminals and not the crime forensic evidence may be used.” (The reference to the detection of criminals indicates the positive attitude of the judges for polygraph test, which is another suggestive question in the questionnaire. Polygraph test is considered to be one of the most unreliable test for detection of crime due to its inaccuracy, whereas forensic examination in laboratory conditions is time tested and accepted in all jurisdictions worldwide.)

In the light of the existing facts, one may even wonder what is left to rely upon? It is a pity that the suggestions by the judges were more concerned of taking away the basic ingredients of rule of law like the right to silence and presumption of innocence. The judges also recommended that Article 20(3) of the Constitution of India should be amended, as it was considered as a stumbling block in criminal cases.

Where gross violations of basic human values happen in such proportions within the state and when the courts, government and other arms of the state ignore such violations and further permit it to continue no justice what so ever could be achieved. 

Any attempt to restructure the legislations without addressing the basic facts and correcting inherent errors due to improper implementation of existing laws would only result in catering the interests of a government which foster the idea of building a police state.

AHRC urge the state government and the court: 

– To urge the Government of India to ratify the Convention against Torture and to adoption the convention at the domestic level thorough implementation of appropriate laws.
– To take immediate actions to conduct an impartial inquiry into the incident mentioned above and to put an end to the practice of callousness, exploitation and torture as carried out by Dr. Gaffar and Mr. Ratan.
– To take appropriate steps without any delay so that the Government Hospitals in the state are provided with enough resources to procure adequate equipments and personnel for proper discharge of their duties.
– To immediately end the practice of deployment of police officers in criminal courts in the state of West Bengal and to replace them with civilian officers.

Truly yours

Mr. Basil Fernando
Executive Director
ASIAN Human Rights Commission (AHRC) 

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