Karnataka High Court urges Centre to amend BNSS to ensure medical exam of rape victims is by female doctor

The Karnataka High Court recently directed the Union government to make an amendment to the recently enforced Bharatiya Nagarik Suraksha Sanhita (BNSS) to ensure that adult victims of sexual assault or rape are examined by women doctors in order to protect their right to privacy..In an order passed on July 15, Justice MG Uma also directed the Union government and the State to ensure that till a suitable amendment is brought to Section 184 of BNSS, the medical examination of victims of rape is conducted only by or under the supervision of a female registered medical practitioner..The Court pointed out that Section 184 of the BNSS that pertains to medical examination of an adult victim of sexual assault is a "verbatim" copy of Section 164A of the now repealed Code of Criminal Procedure (CrPC). Both provisions, old and new, provide that such victim is to be examined by any registered medical professional whether male or female, the Court noted.This provision is at odds with provisions of the POCSO Act relating to the medical examination of minor victims of sexual assault and rape, and also the medical examination of a female accused person in cases of rape and sexual assault, both under the BNSS and the CrPC. The POCSO Act mandates that minor victims should be examined by women doctors only. Similarly, Sections 53 and 51 of CrPC and BNSS mandate that female accused persons must be examined only by a female medical professional or at least under the supervision of a female doctor, the High Court noted. .“There is absolutely no reason as to why similar requirement to compel examination of an adult female who is the victim of sexual assault, should not be held only by a female medical practitioner or at least in her supervision and why such victim is being compelled to face the embarrassment to undergo physical examination by a male medical practitioner,” the High Court said..The Court further said that it was disturbing that while the law protected the rights of an accused, it had failed to take care of the victims.“Thus, it is clear that both these provisions found in the repealed Cr.P.C. are copied verbatim in BNSS without noticing the anomaly which is causing great injustice and embarrassment to the victim of sexual assault, who is more than 18 years of age. It is very disturbing that when such a right to privacy is recognized even to an accused who is a female, there cannot be any justification for not extending such privilege to the victim. An impression would be created in the mind of the general public that the system is more concerned about the right of the accused than the right of a victim,” the High Court said..Justice Uma accordingly directed the union government and the State government to take note of the situation and to draw the attention of the concerned, at least to suggest an amendment to Section 184 of BNSS..The Court passed the directions while hearing a bail application filed by one Ajay Kumar Behera, an accused in a sexual assault case. While it dismissed the bail application, the Court noted that in the present case, the victim had been subjected to medical examination at two different hospitals. The first medical examination had been conducted at a private hospital by a male doctor and had lasted for six hours. Even at the end of it, the doctor had failed to provide a preliminary medical assessment report, the Court noted..Advocate Abishek NN appeared for Behera, the petitioner.Special Public Prosecutor BA Belliyappa and Government Pleader KP Yashodha appeared for the State government..[Read Order]