Only gynaecologists can examine sexual assault survivors: Kerala HC order
Kerala HC Observations on Granting Protection to Nurses in Medical Negligence Cases
Thiruvananthapuram: Upholding the Medico-Legal code for the examination of survivors of sexual offences, the Kerala High Court on Monday rejected a petition that contested clause 6 of the amendment which mandates that only gynaecologists are authorized to perform medical examinations on such survivors.
According to the previous Medico Legal Code before the amendment, 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.
However, a modification was made to this specific rule, stating that only a gynaecologist is permitted to perform examinations on victims of sexual assault.
Challenging this particular clause of the amendment, the petitioners pointed out that the protocol is “illegal, improper, unsustainable and contrary to the already existing national and international guidelines” and argued that the amendment is liable to be struck down as unconstitutional, unreasonable and arbitrary, the Live law reports.
The petitioners alleged that the impugned amendment had been passed under the misconception that gynaecologists have some specialized skill or knowledge in forensic science to deal with sexual offences when that knowledge possessed by them is the same as that of any MBBS graduate.
Dismissing the plea, the bench acknowledged that the petitioners have the freedom to address their grievances with the appropriate authorities. Justice Devan Ramachandran said, "In the case of a woman or a girl, they're trying to give the best possible care."
Further, 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. They reasoned that it's not merely the examination and the collection of evidence that is important but also the best treatment that is available for the victim. 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.
Accepting the counsel's arguments, the court noted that the amendment applies to only one category of sexual assault survivors which is woman/child survivors of vaginal penetrative sexual assault.
