Kerala High Court Dismisses Plea Challenging Amendment Mandating Gynaecologists As Sole Specialists To Conduct Medical Examination Of Sexual Assault Survivors

The Kerala High Court has dismissed the petition challenging clause 6 of the Kerala Medico-Legal Protocol for Examination of Survivors of Sexual Offences 2019 which mandates that gynaecologists be the sole specialists to conduct medical examination of survivors of sexual offence.

The petitioners, in their plea, had submitted 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.

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 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.

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. 

The court accepted the respondent's arguments and noted that the amendment applies to only one category of sexual assault survivors which is woman/child survivors of vaginal penetrative sexual assault.

"In the case of a woman or a girl, they're trying to give the best possible care" remarked Justice Devan Ramachandran orally.

The bench added that the petitioners are at liberty to approach the appropriate authorities with their grievances.

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

Case Number: WP(C) No 39109 of 2023

Case Citation: 2024 LiveLaw (Ker) 186

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