IMPORTANT POINT
The main legal point established is the justification for Gynecologists to examine woman/girl survivors of vaginal penetrative sexual assault to provide comprehensive support and protect privacy, while also acknowledging the need for fine-tuning the Protocols to avoid undue rigour on Gynecologists.

JUDGMENT :

The petitioners are Gynecologists working in various Government Hospital in different districts, in the State of Kerala.

2. The petitioners impugn the “Kerala Medico-legal Protocol for Examination of Survivor of Sexual Offences, 2019”, as is now sought to be amended through Ext.P7, asserting that, if the same is implemented, they would be put to unnecessary burden and prejudice.

3. Sri.Shyam Padman, learned Senior Counsel, instructed by Smt.Laya Mary Joseph – learned counsel appearing for the petitioners, submitted that, as is evident from Ext.P7, an unnecessary rigour has been placed on Gynecologists, by mandating that the examination of a woman/girl survivor of vaginal penetrative sexual assault should be undertaken only by such specialist because, this will distract them from other more pressing demands of their expertise and will subject them to unnecessary burden, of being required to follow the forensic protocols, even where treatment is not necessary. The learned Senior Counsel submitted that, going by Section 27 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’ for short) and Section 164A of Code of Criminal Procedure, 1973, there is no statutory mandate that only a Gynecologist should examine a woman or a girl survivor of sexual assault; and hence that the proposed amendments are illegal and unlawful, if not, the product of a improper exercise of mind, and hence liable to be set aside.

4. Learned Senior Counsel then pointed out that, going by the National Protocols that are still in force – as luculent from Ext.P2, there is no stipulation therein on a Gynecologist alone to examine a sexual assault victim and that it provides that any Registered Medical Practitioner can do so, provided that, in the case of a woman or a girl victim, every possible effort should be made to find a female doctor. Sri.Shyam Padman thus argued that the proposed amendments are totally unnecessary and that it is an exercise in confutative course because, as is manifest from Ext.P7 Government Order, they have been brought in at the instance of certain other doctors, who are not Gynecologists, who had earlier approached the Kerala Administrative Tribunal and obtained Ext.P6 order. He argued that Ext.P6 order was one delivered without hearing his client; and that, in any event, this is not a service matter, which should have seized the attention of the said Tribunal. He thus prayed that Ext.P7, to the extent impugned, be set aside.

5. Sri.Grashious Kuriakose, learned Additional Director General of Prosecutions, instructed by Smt.Vidya Kuriakose -learned Government Pleader appearing for the official respondents, submitted that the petitioners have either approached this Court under a misconsumption or maliciously because, going by the proposed Protocols, it is only the examination of a woman/girl survivor of vaginal penetrative sexual assault, which has been mandated to be done by a Gynecologist at the first instance. He explained that this is because, it is not merely the examination and the collection of evidence which is important, but also the assessment of the best treatment to be made available to the victim, rather than driving such person from doctor to doctor for such purpose. He then explained that, in fact, going by the Protocols of the year 2015, the responsibility of examining, reporting and giving evidence was with female Gynecologists, but that this was modified when the 2019 Protocols were put in place, adverting to the factum of their grievance of being inordinately burdened.

6. Sri.Grashious Kuriakose submitted that it is taking note of all relevant facts, including the imperative care and protection that is to be offered and given to woman/girl survivor of vaginal penetrative sexual assault, that the proposed amendments have been brought in, so as to enable them to get the best treatment also, along with collection of evidence, without having to suffer the ignominy of breach of their privacy, going f