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

March 23, 2004

URGENT APPEALS-GENERAL URGENT APPEALS-GENERAL

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAM

23 March 2004
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AG-01-2004: INDIA: AHRC letter to the President of India regarding the horrendous practices during forensic examinations in West Bengal

INDIA: Reform the horrible condition of post-mortem examinations in West Bengal
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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)

Sample letter:

Dear

Re: The Government of India must stop horrendous practices of post-mortem by law

I am shocked to know the horrible condition of post-mortem examinations in West Bengal. I want to draw your attention that 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.

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.

Therefore, I strongly urge the Government of India to completely reform the management of post-mortem examinations in the state of West Bengal, to ensure that proper procedures are followed, equipment provided and maintained and qualified doctors paid to conduct these important and sensitive operations. I also urge the Government of India to ratify the UN Convention against Torture without delay, and bring it into domestic law together with the necessary institutional changes to see it implemented.

Truly yours,


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Send a letter to:

1. Dr. A.P.J. Abdul Kalam
President
Office of the President,
Rashtrapati Bhawan,
New Delhi, 110004
INDIA
Tel: +91 11 3016767 (Joint Secretary), 3014507 (Personal Secretary)
Fax: +91 11 3017290, 3014570
Email: presssecy@alpha.nic.in or Pressecy@Sansad.nic.in

2. Shri Justice A S Anand
Chairperson
National Human Rights Commission of India
Sardar Patel Bhawan, Sansad Marg,
New Delhi - 110 001
INDIA
Tel: +91 11 2334 0891 / 2334 7065
Fax: +91 11 2334 0016
E-Mail: chairnhrc@nic.in

3. Shri Buddhadeb Bhattacharjee
Chief Minister and Minister in Charge of Home (Police) Department
Government of West Bengal
Writers' Buildings, Kolkata, West Bengal,
INDIA
PIN Code- 700001
Tel: +91 33 2214 5555 (O) / 2280 0631 (R)
Fax: +91 33 2214 5480
Email: cm@wb.gov.in

4. Justice Shyamal Kumar Sen
Chairperson
West Bengal Human Rights Commission
Bhabani bhavan, Alipore,
Calcutta-700027
Tel: +91 33 4797259 / 5558866
Fax: +91 33 4799633

5. Mr. Theo C. van Boven
Special Rapporteur on the Question of Torture
OHCHR-UNOG
8-14 Avenue de la Paix
1211 Geneva 10
SWITZERLAND
Fax: +41 22 917-9016

Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (AHRC)

Document Type :
Urgent Appeal General
Document ID :
AG-01-2004
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Extended Introduction: Urgent Appeals, theory and practice

A need for dialogue

Many people across Asia are frustrated by the widespread lack of respect for human rights in their countries.  Some may be unhappy about the limitations on the freedom of expression or restrictions on privacy, while some are affected by police brutality and military killings.  Many others are frustrated with the absence of rights on labour issues, the environment, gender and the like. 

Yet the expression of this frustration tends to stay firmly in the private sphere.  People complain among friends and family and within their social circles, but often on a low profile basis. This kind of public discourse is not usually an effective measure of the situation in a country because it is so hard to monitor. 

Though the media may cover the issues in a broad manner they rarely broadcast the private fears and anxieties of the average person.  And along with censorship – a common blight in Asia – there is also often a conscious attempt in the media to reflect a positive or at least sober mood at home, where expressions of domestic malcontent are discouraged as unfashionably unpatriotic. Talking about issues like torture is rarely encouraged in the public realm.

There may also be unwritten, possibly unconscious social taboos that stop the public reflection of private grievances.  Where authoritarian control is tight, sophisticated strategies are put into play by equally sophisticated media practices to keep complaints out of the public space, sometimes very subtly.  In other places an inner consensus is influenced by the privileged section of a society, which can control social expression of those less fortunate.  Moral and ethical qualms can also be an obstacle.

In this way, causes for complaint go unaddressed, un-discussed and unresolved and oppression in its many forms, self perpetuates.  For any action to arise out of private frustration, people need ways to get these issues into the public sphere.

Changing society

In the past bridging this gap was a formidable task; it relied on channels of public expression that required money and were therefore controlled by investors.  Printing presses were expensive, which blocked the gate to expression to anyone without money.  Except in times of revolution the media in Asia has tended to serve the well-off and sideline or misrepresent the poor.

Still, thanks to the IT revolution it is now possible to communicate with large audiences at little cost.  In this situation there is a real avenue for taking issues from private to public, regardless of the class or caste of the individual.

Practical action

The AHRC Urgent Appeals system was created to give a voice to those affected by human rights violations, and by doing so, to create a network of support and open avenues for action.  If X’s freedom of expression is denied, if Y is tortured by someone in power or if Z finds his or her labour rights abused, the incident can be swiftly and effectively broadcast and dealt with. The resulting solidarity can lead to action, resolution and change. And as more people understand their rights and follow suit, as the human rights consciousness grows, change happens faster. The Internet has become one of the human rights community’s most powerful tools.   

At the core of the Urgent Appeals Program is the recording of human rights violations at a grass roots level with objectivity, sympathy and competence. Our information is firstly gathered on the ground, close to the victim of the violation, and is then broadcast by a team of advocates, who can apply decades of experience in the field and a working knowledge of the international human rights arena. The flow of information – due to domestic restrictions – often goes from the source and out to the international community via our program, which then builds a pressure for action that steadily makes its way back to the source through his or her own government.   However these cases in bulk create a narrative – and this is most important aspect of our program. As noted by Sri Lankan human rights lawyer and director of the Asian Human Rights Commission, Basil Fernando:

"The urgent appeal introduces narrative as the driving force for social change. This idea was well expressed in the film Amistad, regarding the issue of slavery. The old man in the film, former president and lawyer, states that to resolve this historical problem it is very essential to know the narrative of the people. It was on this basis that a court case is conducted later. The AHRC establishes the narrative of human rights violations through the urgent appeals. If the narrative is right, the organisation will be doing all right."

Patterns start to emerge as violations are documented across the continent, allowing us to take a more authoritative, systemic response, and to pinpoint the systems within each country that are breaking down. This way we are able to discover and explain why and how violations take place, and how they can most effectively be addressed. On this path, larger audiences have opened up to us and become involved: international NGOs and think tanks, national human rights commissions and United Nations bodies.  The program and its coordinators have become a well-used tool for the international media and for human rights education programs. All this helps pave the way for radical reforms to improve, protect and to promote human rights in the region.