Nagpur PIL Updates

CEHAT intervention application : Final Outcome 29th January 2014

CEHAT has continued to engage the Government of Maharashtra to negotiate for a gender sensitive protocol for medical examination. This engagement with officials over the years 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. Unfortunately, health department guidelines are not even in consonance with the Criminal amendment law 2013 because 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 survivor’s s right to health care.

Final hearing of the CEHAT intervention application was held on 29th Jan 2014 related to the four-year-old PIL heard at the Nagpur High court . In spite of repeated engagement with health department to make protocols gender sensitive, the court directed the Government of Maharashtra to start the implementation of these protocols notwithstanding the gender-bias and unscientific parameters in the protocol . It was shocking to note opinions of the division bench that heard the PIL. Areas of concern in the proforma and manual developed by the Government of Maharashtra

CEHAT intervention application : Update June 2012

The Government of Maharashtra appointed committee resubmitted revised proformas for medical examination of sexual assault to the High Court in June 2012. CEHAT, as intervener, responded pointing out that that several issues including over emphasis on injuries, recording of old tears of hymen, height and weight of the survivor and also issues related to consent had not been ammended in the proforma. The court ordered that the Government meet with the interveners to address these issues. A meeting was organized by the Government of Maharashtra in November 2012. The persisting issues with the proforma were discussed. A summary of these issues is available here

CEHAT intervention application : Update October 2011

CEHAT filed a review petition in the High court order on 28th July 2011 requesting the honourable court to look at the lacuane in the GOM submitted revised Proforma and manual and therefore stop the circulation of the Proforma and manual for implementation in Maharashtra. The court admitted the application and asked all parties concerned to meet and discuss the lacuane and file their responses on 6th August 2011. (High court order 28th July 2011)

This was followed by a joint meeting organized by the DHS and CEHAT on 6th August 2011 where experts from the field of health, law, gynecology, forensic medicine, women’s rights activist and the like were invited to present their opinion on the Proformas and manual (MOM, 6th August 2011). CEHAT also sought WHO technical opinion on the Maharashtra proformas and manual thereby requesting the committee to abide by international standards of treatment, care and examination of sexual assault. The meeting ended with the committee members agreeing to consider suggestions especially about seeking informed consent from the survivor of sexual assault, right to comprehensive treatment, reducing the overemphasis on injuries to hymen and redrafting the medical opinion.

However the GOM failed to submit the revised proformas in the court at the scheduled hearing and asked for more time to revise the documents and the matter was adjourned for 5th October. CEHAT has consistently followed up with the convener, Dr Archana Patil, (Add Chf: Joint Director, Hospitals) since 24th August 2011 requesting her to urge the committee to submit the proformas and manual for review before the court hearing. However the GOM shared the proforma and manual only on 1st October 3 days before the court hearing.

Even after taking so much time to revise the proformas and manual by the committee, required changes have not been made. The sections in the proforma with over emphasis on injuries is not removed, the comment on types of hymen and whether present or absent continues to be present. Informed consent though worded differently continues to have the tone of negative consequences for a survivor if she refuses to undergo complete examination. Comments on nutritional status/built of the survivor continue to be present and definition of sexual assault continues to be convoluted and unscientific. In the proforma of the accused too potency forms the core of the examination. None of the proformas even mention comprehensive treatment seriously compromising on health of the survivors. PHC’s continue to be left outside the scope of examining set ups. It is unfortunate that none of the suggestions made by experts have been taken in neither has the technical opinion by the WHO been incorporated. The GOM manual has taken random suggestions in the form of “note”. The “Note“ appears at the end of some sections in the manual and thus loses its relevance as they look like an add on in the manual. CEHAT has voiced its concerns to Dr Patil in a letter (please see letter dated 4th October 2011) which has been submitted to the Nagpur high court on 5th October 2011.

The next hearing is scheduled on 12th October 2011

Related Documents

CEHAT intervention application : Update July 2011

Under the directions of the high court order dated 2nd February 2011, the committee visited the 3 Municipal hospitals in Mumbai where comprehensive health care response to sexual assault was being implemented. The visit was aimed at conducting discussions with examining doctors, medical superintendents and nurses involved in operationalizing the comprehensive model. Besides direct communication, the committees also spent considerable time looking at the nature of documentation maintained and type of records preserved for each survivor. As an output from the visit, the committee was to review “Comprehensive Healthcare Response Model” and revise the sexual assault examination proformas created by them.

It was also pertinent for the committee to develop a protocol on par with the standards laid down by the World Health Organization (WHO). Adherence to international standards meant that the committee had to shift its focus from just medico legal examination to complete medical treatment and psycho social support. CEHAT, shared its protocol, and manual that details out a treatment protocol inclusive of psycho social support as well as examination guidelines.

The committee conducted a series of discussions with CEHAT and health providers from 3 hospitals, revised their proforma based upon these discussions and submitted it in Nagpur High court on 27th April 2011.

Please find the court order – 8th June 2011

In an order dated 7th June 2011, the high court ordered that these proformas along with guidelines be implemented across Maharashtra as petitioners did not object to the content of the proforma and manual. However the proforma and guidelines fail to meet WHO standards and in fact if implemented could have negative consequences on survivors reporting sexual assault at public hospitals. To name a few glaring issues:

  • The guidelines conclude that for sexual assault to be proven, whether penetrative or non penetrative in nature, presence of some form of injuries is a must. Overemphasis on hymen examination and injuries thus continues even in these revised formats.
  • There is no mention of the treatment and psycho social support for the survivor, which is the first duty of a health provider towards their patient.
  • The proforma is not in tandem with the revisions in Indian penal code. For example, committee guidelines state that consent for examination and treatment should be sought from a guardian for survivors till the age of 18. However, in cases of child sexual abuse and incest, guardians may refuse to consent for examination and treatment. Therefore the IPC has a provision to ensure that consent be sought from survivors at the age of 12 to avail of treatment resulting out of sexual assault.
  • The myopic vision of the guidelines is evident in the manner in which the term “sexual assault” is defined. In these guidelines, the term “rape” has been substituted with “sexual assault” and does not take into account the range of forced sexual acts beyond peno-vaginal sexual assault.

CEHAT has filed a review petition in the Nagpur high court to draw attention of the court to the lapses in the recommendations provided by the committee while drafting of the proformas, through its learned counsel, Advocate Anand Grover, Lawyers collective.

CEHAT has critiqued the guidelines and proforma in detail and a summary of the critique is available here...

The filing of review petition was followed by a meeting comprising of forensic doctors, gynecologists, lawyers and civil society to draw attention to the lacunae in the forms submitted by the committee. Minutes of the Meeting

MEMBERS PRESENT
 

  1. Dr. Padmaja Samant [Associate Professor, Gyneac KEM]
  2. Dr. Kamakshi Bhate [Head PSM, KEM]
  3. Dr. Sanjay Nagral [Surgeon, Jaslok Hospital]
  4. Dr. Rajendra Bangal [Forensic expert]
  5. Adv. Manisha Tulpule
  6. Adv. Flavia Agnes [Director, Majlis]
  7. Adv. Mini Mathew [Lawyers Collective]
  8. Adv. Anand Grover [Lawyers Collective]
  9. Ms. Sonya Gill [Secretary, AIDWA, Maharashtra]

The review petition is scheduled to be heard on 28th July 2011.

Related Documents