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Kerala High Court Upholds Specialist Examination Protocol for Sexual Assault Victims, Addresses Doctors' Concerns

Kochi: In a significant ruling, the High Court of Kerala has largely upheld the State Government's amended medico-legal protocol which mandates that the examination of women and girl survivors of vaginal penetrative sexual assault should be primarily conducted by Gynecologists. The court, however, directed the government to provide an opportunity for the affected doctors to represent their specific grievances regarding potential undue burdens stemming from the protocol's operation.

The judgment, delivered by the Honourable Mr. Justice Devan Ramachandran on March 18, 2024, addressed a writ petition filed by a group of Gynecologists working in various government hospitals across the state.

Case Background and Petitioners' Challenge

The petitioners challenged the proposed amendments (Ext.P7) to the "Kerala Medico-legal Protocol for Examination of Survivor of Sexual Offences, 2019". Their primary contention was that mandating Gynecologists to perform these examinations, especially in cases of vaginal penetrative sexual assault, placed an "unnecessary rigour" upon them. They argued this duty would distract them from their core expertise and burden them with forensic protocols even when immediate medical treatment might not be the primary need.

The petitioners, represented by Senior Counsel Sri. Shyam Padman, contended that neither Section 27 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) nor Section 164A of the Code of Criminal Procedure, 1973 mandates examination solely by a Gynecologist. They highlighted that national protocols allow any Registered Medical Practitioner (RMP) to conduct such examinations, preferably a female doctor for women/girls. The petitioners also suggested the amendment was influenced by other medical specialists who had approached the Kerala Administrative Tribunal (KAT), resulting in an order (Ext.P6) without hearing the Gynecologists.

State's Justification and Court's Analysis

Appearing for the State, Additional Director General of Prosecutions, Sri. Grashious Kuriakose, defended the proposed amendments. He clarified that the mandate is specifically confined to cases of "woman/girl survivor of vaginal penetrative sexual assault". He explained the rationale is to ensure comprehensive support for the victim, combining medico-legal examination with immediate assessment for potentially life-saving treatment, all in one go. This approach, he argued, prevents victims from being shuttled between different specialists and better protects their privacy. He also noted that the 2015 state protocols did initially place this responsibility on female Gynecologists, which was later modified in 2019 due to their grievances, suggesting the current amendment was a considered decision based on the imperative need for victim care.

The counsel for the impleaded doctors (respondents 6-10) also affirmed that their request for the amendment was solely motivated by the desire to ensure victims of such grave assaults receive the "finest care as possible, within the shortest period of time," and not out of any conflict with Gynecologists.

Justice Devan Ramachandran , approaching the matter from the perspective of a survivor of sexual assault, found the State's intention behind the amendment "laudatory". The court reasoned that while any RMP can examine sexual assault victims under the protocols, a Gynecologist is uniquely positioned to provide a dual benefit: conducting the medico-legal examination and simultaneously evaluating the need for immediate medical treatment in cases of vaginal penetrative assault. This, the court observed, offers the "best comprehensive support" and enhances the victim's privacy by minimizing the number of required examinations.

> "When it comes to a Gynecologist, it serves a dual purpose, of the doctor being able to not only make the medico-legal examination, but also the evaluation of the medical treatment to be offered, which certainly, would be the best comprehensive support that a victim, particularly a young girl or a woman, would require in the given circumstances."

The court did not find the proposed amendments to be "capricious, arbitrary or vitiated," particularly as they target a specific, justified class of victims and assault types.

Decision and Way Forward

While upholding the principle behind the amendment, the court acknowledged that a "blind adherence" could potentially lead to "unforeseen rigour" on Gynecologists on a case-to-case basis and that the protocols "may require a little bit of fine tuning".

Consequently, the High Court did not set aside the impugned protocol amendment. Instead, it granted liberty to the petitioner Gynecologists to submit a detailed representation outlining their specific grievances to the competent government authority within one month. The court directed the government to hear the petitioners, along with any other interested parties (including the impleaded doctors), and pass an appropriate order within three months thereafter.

The judgment emphasized that the court's observations were not intended to favour one section of doctors over another, and the government's decision should be guided by the best interest of the victim. The writ petition was thus ordered, facilitating a dialogue between the doctors and the government to fine-tune the implementation of the protocol while ensuring victim care remains paramount.