Dead Man Walking (With apologies to Sean Penn)

Legal issues about a person who does not ‘exist’ anymore

Last month, Judge Allen Davis, presiding in a court in Ohio (USA), told the man seated in front of him, “No, you are still deceased.” Donald Eugene Miller Jr, was in court wanting to be told that he was alive. According to the judge, Miller was as dead as a dodo, “ law.” This author has always maintained that though people might say the law is an ass, it is not a donkey. So why is a living, walking, talking, man declared ‘dead’?
You be the judge on this one. It has not been decided yet.

Donald Miller was living in Arcadia. Having lost his job, he decided to try his luck elsewhere. The ‘elsewhere’ happened to be 1,700km away. It took him 19 years to get back. By which time he was declared dead. Or, at least, ‘legally dead’.

The law in America states that if a person is unheard of, not seen, not contactable for five years, he is ‘presumed dead’. A similar law exists in India and the period of waiting is seven years. The reason for this is simple. There are situations that need to be taken care of. The man’s estate. The man’s family. The man’s insurance.

After the period of waiting, interested parties approach the court. Following due diligence, the court arrives at a decision and pronounces the person ‘legally dead’. His estate is settled, either by his Will and through a probate, or as an intestate’s property. The wife, or husband, is declared a widow or a widower. The insurance is paid out as per the law.

There is, of course, a built-in safeguard. The process takes a specific period of time. It can be reversed, if circumstances can be proved otherwise. On the other hand, if it is proved that the person has, indeed, died, the ‘legally’ tag can be eliminated. The problem arises when, in spite of all the procedures, the person turns up alive, as Donald did.

You be the judge.

The matter has been discussed in public and some tongue-in-cheek comments made. “If Donald is murdered, can a person be charged with ‘killing’ a dead man? Would it amount to desecrating a corpse?” Will the insurance company charge Donald, or his heirs, with fraud, ask for repayment and cancel the policy for lapse? But these are small problems compared to the ones that Donald is facing.

A ‘dead’ man can have no identity. In America, there is the social security number, something on the lines of the aadhaar, which is cancelled on a person’s death. On ALL records, Donald is now non-existent. He cannot get a stable job nor can benefits be given him as an unemployed person. No one will give him medical assistance except out of humanitarian concern. He cannot get a driving licence nor can he use his old licence because then he would be arrested for impersonation. The list is endless and can only grow by the day.

The author suggests a solution. Use existing laws to relieve, and ‘relive’, the poor man from his burden. After all, it wasn’t he who asked for him to be declared dead. All this was, technically, done behind his back. He was not a party to this unhappy state of affairs that the State has put him in. There is what is called the ‘witness protection programme’. Whistleblowers, whose lives are in danger, are given a new identity and relocated to protect them from retribution. That could be tweaked a bit and Donald resurrected from the ‘dead’. Rebirth, if you wish. And called Donald Eugene Miller III.

As for the ‘murder’ question above, the killing of a ‘dead’ man would still be a crime. The body would be the necessary evidence of murder. The victim, non-identifiable, would be named John Doe, a common term used when a person’s name cannot be established.
(And, in India, we could give him a government job where he would simply ‘disappear’ once again; as most government servants are wont to do!)

apoo Malcolm is a practising lawyer in Mumbai. Please email your comments to [email protected] or [email protected]

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