Plea In Kerala HC Challenges Amendment Mandating Examination Of Sexual Assault Survivors Only By Gynaecologists, Says They Are Overworked & Understaffed

Gynaecologists working in government hospitals across Kerala have moved the Kerala High Court challenging an amendment order passed by the government which mandates only 'gynaecologists' to be allowed to examine the survivors of sexual offences rather than any 'registered medical practitioner' as provided under Section 164A of the CrPC.

A single-judge bench of Justice Devan Ramachandran will be hearing the matter. 

The petitioners submit that the order passed by the respondent amending clause 6 of the Kerala Medico-Legal Protocol for Examination of Survivors of Sexual Offences 2019 making gynaecologists the sole specialists to conduct medical examination of survivors of sexual offence is “illegal, improper, unsustainable and contrary to the already existing national and international guidelines”. The petitioners add that the amendment is liable to be struck down as unconstitutional, unreasonable and arbitrary.

“Due to the implementation of aforesaid clause, severe distress is being caused to the already anxious survivors of such offences for they have to wait for a very long time in the hospital to complete the process of medical examination as all the gynaecologists in the hospital as severely understaffed and overworked with a lot of additional duties” states the plea.

As per the previous Medico Legal Code which existed in Kerala 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.

The petitioners alleged that the order 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.

The plea adds that the amendment order was issued “without even granting an opportunity of hearing the gynaecologists who are the actual stakeholders as far as the above situation is concerned”.

Accordingly, the petitioners moved the Kerala High Court to quash it and declare that the amendment order which amended Clause 6 of the Kerala Medico-Legal Protocol for Examination of Survivors of Sexual Offences 2019 to make gynaecologists the sole specialists to conduct medical examinations of survivors of sexual offences was unconstitutional, unreasonable, arbitrary and liable to be struck down.

The matter has been posted for March 5, 2024.

The plea was moved by Advocates Shyam Padman, CMAndrews, Boby Sekhar, Laya Mary Joseph, Harish Abraham, Nichu Willington, Ashwathi Shyam, Swathy Sudhir, Ram Mohan

Case Number: WP(C) No 39109 of 2023

Case Title: Dr. Laxmy Rajmohan and ors. v. State of Kerala and ors.