Right to health care for survivors of sexual assault: Public interest litigation
CEHAT filed an intervention petition in the Nagpur High Court on 9th Sept 2010 in a Public interest litigation (PIL) filed by Dr.Ranjana Pardhi and others against Union of India in 2009. The Lawyers Collective is representing CEHAT for this petition. The PIL by Ranjana Pardhi and others sought to streamline the medico legal response to sexual assault. As a response to this, the central and state governments submitted proforma for medical examination of sexual assault survivors. These proformas were archaic and not in accordance with the international standards or existing laws in the country. CEHAT made two key prayers through its intervention application - the first prayer demanded that the state government should stop the use of their archaic proforma with immediate effect and replace it with a gender sensitive proforma. The second prayer asked the state government to ensure the provision of immediate medical treatment along with psychosocial services at the hospital level.
The court appointed a committee to look in to the proformas and manual submitted by the petitioners as well as CEHAT (intervenors) and submit a proforma and manual to the court. However the committee set up comprised of only forensic doctors, these doctors donít conduct sexual assault examinations at all. Therefore CEHATís legal counsel argued for expanding the committee and including doctors who were instrumental in implementing the comprehensive health care response in Mumbai hospitals. CEHAT also demanded that those involved in drafting such a proforma ought to visit the 3 hospitals where such a comprehensive model is being implemented. Visits were organised to the 3 sites and the committee was invited to interact with the hospital staff, with the hope that it would impress upon the committee the feasibility and positive impact of implementing gender sensitive protocols. In spite of such close engagement by CEHAT with the committee, the revised proformas submitted were not as per the standards set by the WHO. Unfortunately the petitioners (Ranjana Pardhi and others) did not register any objections to these proformas and therefore the court came to the conclusion that the proformas be circulated for implementation all over Maharashtra hospitals and police stations. Disturbingly, the proformas lay emphasis on injures per se, whether in penetrative sexual assault or non penetrative sexual assault. This would provide absolutely wrong directions to a doctor while conducting examinations; thereby it would be interpreted as ďno injuries would mean no sexual assaultĒ. Analysis of sexual assault cases handled by CEHAT dispels the myths around injuries completely. Further the guidelines did not even mention the nature of therapeutic care required by survivors of sexual assault. CEHAT, in response to the court order, filed a review application to draw attention of the judiciary to the fact that the proformas submitted by the committee do not follow the WHO standards and are also in contradiction with the Indian law. Several efforts were made to build opinion amongst health professionals, NGOs and civil society on the problems with the state proforma, in the form of consultations. Since the proformas were not on par with the international standards established by the WHO for health care response, CEHAT sought a WHO technical opinion on these proformas and manual and submitted it to the GoM. Efforts were made to involve experts from the field of Medicine, womenís rights activists, lawyers, social workers to discuss ways of getting the GoM to understand the problems.
A state level consultation was organized at the Directorate of Health Services office in Mumbai on 6 August 2011. A response was filed in Nagpur court citing opinions from Indian forensic medicine experts, as well as a WHO technical opinion on the Maharashtra protocol. Despite the agreements arrived upon with the government of Maharashtra committee, the revised proforma and manual submitted to the court were unacceptable on the same grounds. Further, unscientific reasons were provided for not incorporating the changes. For two years following this, CEHAT repeatedly appealed that the proformas be revised, and continued to engage with the government of Maharashtra officials including the Director of Health Services and the Health Secretary. This engagement led to certain superficial changes, but on the whole, the protocol developed by the health department is far from comprehensive when compared with the guidelines for medico legal care of sexual assault survivors by WHO. In the meantime, the criminal law underwent an amendment in April 2013, and the guidelines were not even in consonance with the amended law. Now, even the law has now recognized the right to care and treatment but the Government of Maharashtra protocol does not include it which can lead to violation of survivorís s right to health care.
The Nagpur bench of Mumbai High Court concluded this PIL in favour of the Maharashtra health department on 29th Jan 2014. The division bench itself stated to the Interveners (CEHAT) that injuries are often present in struggle related to sexual assault and also made a case for inclusion of height and weight as important components of sexual assault examination proforma. By doing this, the honourable high court has taken regressive steps yet again and this would definitely hinder the process of seeking justice for survivors of sexual assault. The Maharashtra medico legal protocol continues to contain unscientific parameters such as height/ weight, vaginal and anal elasticity and overemphasis on injuries. Treatment guidelines have still not become a part of this protocol. An analysis of the Maharashtra protocol was undertaken and widely shared with organizations and health activists to build pressure on the Government of Maharashtra to stop such an implementation.
CEHAT is currently in the process of challenging this protocol in the Supreme Court of India with expert advice and legal counsel of the Lawyers Collective and the petition in the Supreme Court has been filed. Simultaneously efforts are on to engage the health secretary and her office in Maharashtra to implement the Ministry of Health & Family Welfare (MOHFW) guidelines which have been released as uniform protocol for sexual assault health care across the country and are deemed to be on par with the WHO guidelines.
For more details about the SLP, please see: Supreme Court SLP (Civil) Updates
For more details about the PIL, please see: Nagpur PIL Updates
Please See the Protocols & Guidelines published by Ministry of Health & Family Welfare: GUIDELINES & PROTOCOLS: Medico-legal care for survivors/victims of Sexual Violence