Kerala High Court upholds rule mandating only gynaecologists should examine sexual assault survivors

The Kerala High Court on Monday dismissed a petition moved by several gynaecologists working in government hospitals across Kerala challenging a protocol that mandates that survivors of sexual offences be examined only by gynaecologists [Dr. Laxmy Rajmohan & Ors. v. State of Kerala & Ors.]..Justice Devan Ramachandran, however, granted the petitioner-gynaecologists liberty to approach the appropriate State authorities with their grievances. .In their petition, the gynaecologists specifically challenged Clause 6 of the Kerala Medico-legal Protocol for Examination of Survivor of Sexual Offences of 2019 and an amendment made to it in April 2023.As per the 2023 amendment, the police can ask only women gynaecologists to conduct examinations on survivors.According to the petitioners, making it mandatory for gynaecologists to examine sexual assault survivors instead of 'any registered medical practitioner' is contrary to what is prescribed under Section 27(2) of the Protection of Children from Sexual Offences Act (POCSO Act), and Section 164A of the Code of Criminal Procedure (CrPC).A mandate such as that seen in Clause 6 is not included in national or international guidelines for attending to survivors of sexual offences, the petitioners contended.The petition further said that the implementation of this protocol has affected sexual assault survivors as they are being made to wait for a long time to be examined by women gynaecologists in hospitals that are understaffed and overworked."Therefore clearly, entrusting the responsibility of conducting medico legal examination to a certain kind of specialists has proven to be counter productive to the actual object sought to be attained by the State and has also resulted in compromising and prejudicing the even otherwise stressed obstetrics specialty," the plea said.As per the plea, all registered medical practitioners who come within the definition of Section 53(2)(b) of the CrPC can conduct medical examinations of survivors as provided in Section 164A of the CrPC.Citing the curriculum in undergraduate medical courses in India, the petitioners argued that 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.Placing the burden solely on gynaecologists is illegal, improper, unreasonable and arbitrary, they contended.The petitioners, therefore, sought modification to Clause 6 of the protocol to place the responsibility of medical examination of survivors of sexual offences on "all registered medical practitioners" instead of only on "gynaecologists.They also said that the 2023 amendment should be struck down for being unconstitutional.Further, necessary training should be imparted to all registered medical practitioners for examining survivors, it was submitted..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..Story to be updated with order.