[Custodial Torture] Kerala High Court directs State govt to expeditiously issue guidelines for medical tests

The Kerala High Court recently directed the Kerala government to expeditiously issue an order on the procedure to be followed by medical professionals while examining accused and under trial persons for evidence of any manner of custodial torture or injury (Dr. Prathibha K v. State of Kerala & Ors.)..Justice PV Kunhikrishnan passed the judgment after noting that the government has already initiated proceedings to issue a final government order to implement to recommendations of the Justice K Narayana Kurup Commission which had investigated a custodial death that occurred in the State.The Court directed the government to issue orders taking said recommendations and inputs from relevant stakeholders into consideration within a period of two months.Until such time doctors are free to conduct any medical test as they deem fit to detect internal injuries from possible custodial torture, the Court clarified..Justice Narayana Kurup CommissionPursuant to the custodial death of one Rajkumar in Kerala, the State government had appointed a Judicial Commission of Enquiry with Justice Narayana Kurup at the helm. In June 2019, the deceased, K Rajkumar, was taken into custody by Police and produced before a magistrate. However, he was allegedly tortured for the next four days, following which he was admitted to hospital, where he died on June 21.After public outcry, the State government led by Chief Minister Pinarayi Vijayan, had appointed the judicial commission to look into various aspects related to the custodial death, including the circumstances leading to it.The commission report, which was filed in May 2021, recommended certain procedures to be followed by the police, doctors and jail authorities, The commission had reported that, the failure in reporting the internal injuries of the accused is the reason for the custodial torture and custodial death and therefore recommended certain measures that may be implemented so as to detect and prevent such incidents in the future.The government accepted the recommendations and directed the Directorate of Health to issue a circular which it did in June, 2021..The petitioner, a government doctor, represented by advocate R Gopan, contended that this circular was issued without cogent understanding of the recommendations of the judicial commission.According to the petitioner, the recommendation was to the effect that on medical examination if the doctor found or suspects internal injury, he/she can conduct or recommend certain tests to the accused. .To confound matters further, it was submitted that the jail authorities issued a separate circular stating that before admitting the accused in jail, it has to verify specific aspects such as the accused's renal profile, ultrasound scan of the abdomen, etc. Subsequently, the Directorate of Health issued yet another circular stating that the earlier circular issued by it would be kept in abeyance until further directions. Since then, medical practitioners have been in dilemma, the petitioner stated..The plea further said that even if in the medical examination they suspect serious internal injury, they might not conduct tests to verify the same or refer the patient to the Medical Board for detailed examination, all due to the absence of specific direction or circular from the Health Department. It was also alleged that often, the police was insisting that the doctors examine only external injuries, even going to the extent of harassing them to confine them to such examination alone.Therefore, the petitioner claimed to have filed a representation before the relevant State authorities requesting to issue a circular clarifying that there is no bar in conducting various tests if the doctor deems it necessary in the preliminary examination of the accused person. However, as no response was received on the representation, the petitioner was prompted to approach the Court..The Government Pleader submitted that in July 2021, a meeting had been convened by taking into consideration reports from various stakeholders and experts, including the representation submitted by the petitioner to discuss on the matter of medical examination and investigation of under trial persons. The affidavit submitted by the government stated, "On the basis of suggestions put forth by the participants, it was decided to modify the relevant portion of the Government order dated 17.02.2021, preferably by insisting that higher investigations and tests can be carried out based on the recommendations of the medical officers, evaluating a custodial person so that two to three stages of investigations can be specified. It is also decided to obtain detailed and specific comments of the Health and Family Welfare Department to proceed further in amending the Government Order."The GP also stated that the amendment to the Government Order will be issued after considering all the suggestions that came up in the meeting and looking into the prayer of this writ petition and relying upon the guidelines for medico legal examination of arrested person as prescribed by the National Human Rights Commission. .Therefore, the Court directed the government to conclude the proceedings already initiated as per the affidavit and issue an amended order within a period of two months. [Read Judgment]