Kerala HC upholds rule on gynaecologists examining sexual assault survivors

KOCHI: The Kerala High Court has rejected a petition moved by several gynaecologists working in government hospitals challenging a protocol that mandates that survivors of sexual offences to be examined only by gynaecologists. 

"In the case of a woman or a girl, they're trying to give the best possible care", Justice Devan Ramachandran orally remarking while rejecting the plea. The Judge also granted the petitioners liberty to move the appropriate authorities.

The plea was specifically challenging clause 6 of the Kerala Medico-Legal Protocol for Examination of Survivors of Sexual Offences 2019 which mandates that gynaecologists are the sole specialists to conduct medical examination of survivors of sexual offences.

It is the petitioners case that the protocol is illegal, improper, unsustainable and contrary to the already existing national and international guidelines. As per the 2023 amendment, the police can ask only women gynaecologists to conduct examinations on survivors. 

The previous Medico Legal Code before the amendment, stated that all registered medical practitioners who came within the definition prescribed under Section 53(2)(b) of CrPC could conduct medical examinations of survivors of sexual offences as given in Section 164A of CrPC. 

The 2023 amendment has been passed under the misconception that gynaecologists have some specialized skill or knowledge in forensic science to deal with sexual offences. However, the petitioner claimed that the knowledge possessed by them is the same as that of any MBBS graduate. In fact, all Indian medical graduates are exposed to all areas of medicine during their studies and are, therefore, competent to deal with examining survivors of sexual offences. On these grounds, the petitioners argued that the 2023 amendment is liable to be struck down as unconstitutional, unreasonable and arbitrary. 

The counsel for the respondents contended that the protocol mandates only the examination of women/girl survivors of only vaginal penetrative sexual assault to be done by the gynaecologist at the first instance. Not merely the examination and the collection of evidence but the best treatment for the victim, is what the framers of the amendment had in mind. 

The counsel added that the 2015 protocol required examination, reporting and giving evidence to be done by female gynaecologists which was modified by the 2019 protocol due to them being inordinately burdened.

The petitioners were represented by Senior Advocate Shyam Padman and advocates CM Andrews, Boby M Sekhar, Laya Mary Joseph, Harish Abraham, Nichu Willington, Ashwathi Shyam, Swathy Sudhir and Ram Mohan.