Unpublished working draft Not for circulation

REVERED ‘ROUTINES’ IN MEDICAL EXAMINATION OF

RAPE ACCUSED

SHREYA SHREE Research Fellow, Centre for Constitutional Law, Policy and Governance National Law University, Delhi.

1

Unpublished working draft Not for circulation

INTRODUCTION

In the adjudication of rape,1 medical evidence does not play a “decisive role”.2 The victim’s testimony can be the ‘sole’ basis for convicting the accused, without corroboration from any other evidence.3 However, evidence obtained from the medical examination of the victim and the accused plays an important corroborative role, particularly for proving the penetrative act and establishing its link with the accused.4

The Code of Criminal Procedure, 19735 provides for the medical examination of the victim and the accused under Secs. 164A and 53A respectively, but does not detail the stages or mode of conducting such examination. In practice, the protocols for medical examination and collection of evidence, formulation of opinion, and its interpretation by the Courts are guided by the textbooks on medical jurisprudence.6

As the literature focussing on the medical examination of the victims elucidates, the prescriptions in these textbooks reinforce the patriarchal notions of chastity and stereotypes and myths around rape and rape victims.7 The examining doctor is re-imagined in the role of a “detective”, who can unmask false allegations of rape8 by tracing evidence on and inside the

1 In this paper, unless otherwise specified, the term ‘rape’ shall jointly refer to the offence under Sec. 375 and 376 of IPC (Indian Penal Code, 1860 (“IPC”)) and the offence of ‘penetrative sexual assault’ under Secs. 3 and 4 of (Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”)). The terms ‘victim’ and ‘accused’ should be understood accordingly. Further, ‘accused’ does not include non-male persons accused under POCSO Act. 2 Mahindra v. Sajjan Galfa, MANU/SC/0458/2017 (Supreme Court) (speaking in the context of offences against the body and post-mortems, the Court observed that medical evidence plays a ‘decisive’ role); But see Rao Harnarain Singh v. State, AIR 1958 Punj 123 (Punjab and Haryana High Court); Rafiq v. State of Uttar Pradesh, (1980) 4 SCC 262, at ¶ 5 (Supreme Court); Bharwada Bhoginbhai Hirjibhai, (1983) 3 SCC 17, at ¶11 (Supreme Court); Madan Gopal Kakkad v. Naval Dubey, (1992) 3 SCC 204, at ¶23; State of Punjab v. Gurmit Singh, (1996) 2 SCC 384, at ¶ 9 (Supreme Court). 3 Id. 4 Mrinal Satish, The Law and Practice of Rape Adjudication in India in DISCRETION, DISCRIMINATION AND RULE OF LAW 34, 45 (2016). 5 The Code of Criminal Procedure, 1973 (“Cr.P.C.”). 6 Durba Mitra and Mrinal Satish, Testing Chastity, Evidencing Rape: Impact of Medical Jurisprudence on Rape Adjudication in India, ECONOMIC AND POLITICAL WEEKLY 51, 52 (2014). 7 Elizabeth Kolsky, The Body Evidencing the Crime, 22 GENDER AND HISTORY 109 (2010); Krishna Vij, TEXTBOOK OF FORENSIC MEDICINE AND TOXICOLOGY: PRINCIPLES AND PRACTICE, 306 (6th edn., 2014) (“genital injuries […] may be the result of intercourse indulged-in with full consent and enthusiasm at the time, but becoming grounds for a delayed allegation of rape when euphoria of the incident is replaced by self-disgust due to societal or other reasons”). 8 See for instance, PARIKH’S TEXTBOOK OF MEDICAL JURISPRUDENCE, FORENSIC MEDICINE AND TOXICOLOGY, 389, 399 (B.V. Subrahmanyam, 7th edn., 2016) (2016 edition of the book carries a sub-section on ‘false accusations’, which reiterates the Hale warning. It lists ways in which false evidence of rape may be produced by lying victims such as bruises made using nut juice, blood stains using frog’s and fowl’s blood, and semen stains using egg albumin or starch); Mitra, supra note 6, at 53. 2

Unpublished working draft Not for circulation

body of the victim, often through invasive procedures that violate her bodily integrity, privacy and dignity.9 In the courtroom, these textbooks are regarded as legal authorities10 to interpret the medical evidence and opinion. Thus, biased, unscientific and legally irrelevant evidence finds its way into the trial and has a significant impact on its outcome.11

To remedy this, the Ministry of Health and Family Welfare12 released the ‘Guidelines and Protocols on Medico-Legal Care for Survivors / Victims of Sexual Violence’ in 2014.13 The guidelines focus on informed consent, dignity and privacy of the victim, and her medical and psychological care. They provide a standardized protocol for medical examination and collection of forensic evidence, which is based on medical and crime history, in tune with the amended definition of rape under the IPC.14 It also provides a pro-forma for reporting the findings.15 The insensitive and irrelevant tests such as those concerning the hymen, built of the victim and past sexual history16 are expressly barred.17

9 Flavia Agnes, To Whom to Experts Testify? Ideological Challenges to Feminist Jurisprudence, 40 (18) ECONOMIC AND POLITICAL WEEKLY 1859 (2005); 10 Mitra, supra note 6, at 55. Recent decisions from the High Court highlight the crucial role played in adjudication of rape. Jaisingh P. Modi’s textbook remains the most cited. MODI: A TEXTBOOK OF MEDICAL JURISPRUDENCE AND TOXICOLOGY 674 (K.Kannan J. and K. Mathiharan eds., 24th edn., 2011). See for instance, Sancha Hang Limboo v. State of Sikkim, 2018 SCCOnline Sikk 10 (Gauhati High Court); Taraman Kami v. State of Sikkim, 2017 SCCOnLine Sikk189 (Gauhati High Court) (referred to Modi’s textbook to ascertain if a “woman can be violated during natural sleep”); Neeraj v. State of NCT of Delhi, 2017 SCCOnLine Del 12359 (Delhi High Court) (referred to the section on rape of grown up woman in ‘Taylor on Principles and Practices of Medical Jurisprudence’); Abhay Singh v. State of NCT of Delhi, 2017 SCCOnLine Del 9369 (Delhi High Court) (referred to Taylor on ‘Principles and Practices of Medical Jurisprudence’ for ascertaining the possibility of forcible intercourse without bruises). 11 See Pratiksha Baxi, Medicalisation of Consent and Falsity – The Figure of Habitue’ in Indian Rape Law, in PUBLIC SECRETS OF LAW, 61 (2014). 12 Note that as health is a State subject (Entry 6 of List II, Schedule VII, Constitution of India, 1950), the implementation of the guidelines has not been uniform. 13 Ministry of Health and Family Welfare, Guidelines and Protocols - Medico-Legal Care for Survivors / Victims of Sexual Violence (2014) available at https://mohfw.gov.in/sites/default/files/953522324.pdf (Last visited on 21 May 2018)(“2014 Guidelines”). 14 Criminal Law (Amendment) Act, 2013 (“2013 Act”) (Post the amendment, definition of rape was expanded to include non-penile-vaginal penetrative acts, such as digital penetration, cunnilingus and fellatio). 15 Medico-legal Examination Report of Sexual Violence in Guidelines and Protocols - Medico-Legal Care for Survivors / Victims of Sexual Violence (2014), 60 (“Proforma for Victims”). 16 Cl. (4) of 155, Indian Evidence Act, 1872 which allowed evidence of victim’s general immoral character for impeaching her testimony was omitted by Indian Evidence (Amendment) Act, 2002. Further, Secs. 53A and 146, Indian Evidence Act, 1872 expressly lay down that such evidence is not relevant for proving ‘consent’ or impeaching the creditworthiness of the victim. 17 Jagadeesh N., Medical Evidence in Examination of Rape / Sexual Assault Survivor in RECENT ADVANCES IN FORENSIC MEDICINE AND TOXICOLOGY: GOOD PRACTICE GUIDELINE AND CURRENT MEDICOLEGAL ISSUES, Vol. 2, 18, at 20 (Gautam Biswas ed., 2018). 3

Unpublished working draft Not for circulation

On the other hand, medical examination of the accused has received scant attention. The Constitution guarantees the right to privacy, including bodily integrity, fair trial and protection against self-incrimination to the accused. However, these rights are not absolute and permissible limitations exist to balance them with the public interest in effective investigation and justice to the victim.18 Medical examination of the rape accused can be conducted without his consent and with use of reasonable force, if necessary.19 No standard guidelines exist for such medical examination.20

Existing literature indicates that examination of an accused is often conducted in a routine manner, without considering the “informative history” of the alleged act, and involves invasive tests and collection of samples having no relevance to the offence.21 However, it does not provide detailed accounts of the practices and procedures forming part of the medical examination of accused, nature of evidence collected, and its impact on the adjudication of rape and the rights of the accused. The protocols in the medical jurisprudence textbooks are dated and retain focus on penile-vaginal penetrative acts.22 This paper hopes to bridge this gap in the literature.

The paper presents the findings of my empirical research23 on the characteristic elements of the practices in the medical examination of the accused, and assesses them in light of the constitutionally guaranteed rights of the accused and the need for efficient investigation of rape. It also highlights the way in which these practices reflect and reinforce the prevalent stereotypes and myths around rape.

18 See Aparna Chandra and Mrinal Satish, Criminal Law and the Constitution in THE OXFORD HANDBOOK OF THE INDIAN CONSTITUTION 794 (Sujit Choudhary et al eds., 2016). 19 Sec. 53A, Code of Criminal Procedure, 1973. 20 One of the participants of the empirical research informed that deliberations on a draft protocol for examination of accused were then ongoing with the Ministry of Health and Family Welfare. 21 See generally, Aloke Mazumder, Examining an Accused of Sexual Assault – Some Practical Aspects, INDIAN MEDICAL GAZETTE 329 (September 2013); Indrajit Khandekar, Relevance of Semen Collection of the Accused of Rape at the time of Forensic Medical Examination, 35 (3) JOURNAL OF INDIAN ACADEMY OF FORENSIC MEDICINE 200-201 (2013); U.K. Kulkarni et al, Relevance of Semen Sample in Sexual Assault Investigation, 4 (8) WORLD JOURNAL OF PHARMACY AND PHARMACEUTICAL SCIENCE 1608 (2015); Md. Shadaab Raheel et al, Potency Test of a Rape Accused in India – Rationale, Problems and Suggestions in the light of Criminal Law (Amendment) Act, 2013, 6 (4) EGYPTIAN JOURNAL OF FORENSIC SCIENCES 333 (2016). 22 See for instance MODI A TEXTBOOK OF MEDICAL JURISPRUDENCE AND TOXICOLOGY, xvii (K. Kannan J. and K. Mathiharan eds., 24th edn., 2012), at 672-673; K.S.N. Reddy and O P Murty, THE ESSENTIALS OF FORENSIC MEDICINE & TOXICOLOGY, at 397-398 (34th edn., 2017); Parikh, supra note 8, at 401-404; Vij, supra note 7, at 306-308. 23 The research study was conducted between December 2017 - May 2018, for the dissertation that I submitted in part fulfilment for the LL.M. degree programme at National Law University Delhi. I express my deepest gratitude towards Prof. Mrinal Satish, my supervisor, for his guidance and support. 4

Unpublished working draft Not for circulation

I begin with an overview of the law on accused’s examination and the constitutional guarantees in the first part of the paper. The second part outlines the research method and its limitations. I briefly highlight the role of medical evidence in proving rape in the third part before presenting the research findings and observations in the final part.

I. LAW ON MEDICAL EXAMINATION OF ACCUSED

The Code of Criminal Procedure, 1898, which preceded the present Cr.P.C. did not authorise physical and medical examination of the accused without his consent.24 In 1967, the Law Commission of India deliberated on permissibility of such examination in view of the protection against self-incrimination under Art. 20 (3) of the Constitution,25 the necessity of a provision authorising such examination, and its desired form.26

By this time, contours of Art. 20 (3) had been set by an eleven-Judges bench of the Supreme Court in Oghad27. While in M.P. Sharma28 “to be a witness” under Art. 20 (3) had been interpreted to mean nothing but “furnishing evidence”, Oghad confined this protection to such oral or written statements which conveyed the ‘personal knowledge’ of the accused in respect of the relevant facts (“testimonial acts”).29 The protection was available only if the testimonial act was incriminatory ‘by itself’ and therefore, did not extend to fingerprints or handwriting samples obtained for ‘comparison’ with materials already within the knowledge of the investigators.

Echoing H.L. Packer’s crime control model,30 the Court opined that the framers of the Constitution could not have intended to put fetters on the investigating powers of the police to

24 Indian Law Institute, SELF-INCRIMINATION: PHYSICAL AND MEDICAL EXAMINATION OF THE ACCUSED, 1-3, 31 (1963); see Bhondar v. Emperor, AIR 1931 Cal 601 (Calcutta High Court) (The court held that in the absence of statutory authority, medical examination of the accused without his consent would amount to assault.); Deoman v. State of Maharashtra, AIR 1959 Bom 284 (Bombay High Court). 25 Art. 20 (3), Constitution of India, 1950 (“No person accused of an offence shall be compelled to be a witness against himself”). 26 37th Report of the Law Commission of India, The Code of Criminal Procedure 1889, 205 (1967). 27 State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808 (Supreme Court) (“Oghad”). 28 M.P. Sharma v. Satish Chandra, AIR 1954 SC 300 (Supreme Court). 29 Oghad, AIR 1961 SC 1808, at ¶ 16; Chandra, supra note 18, at 803 (Sujit Choudhary et al eds., 2016). 30 Gautam Bhatia, Privacy, Self-Incrimination, and Article 20 (3) - II: Kathi Kalu Oghad (16 September 2014) available at https://indconlawphil.wordpress.com/2014/09/16/privacy-self-incrimination-and-article-203-ii- kathi-kalu-oghad/ (Last visited on 21 May 2018). 5

Unpublished working draft Not for circulation

bring criminals to justice.31 Post Oghad, evidence obtained from physical and medical examination of the accused fell within the category of “wholly innocuous”32 material evidence, that was independent of the ‘volition of the accused’, unchangeable (except in rare cases), and accurately verifiable through scientific examination.

Having surveyed the position in England and U.S.A, the Commission cited Oghad to conclude that a provision authorising such examination of the accused would pass the test of Art. 20 (3) and was indeed necessary for ‘effective investigation’33 of crimes, including sexual offences.34 Concerns relating to violation of bodily integrity and dignity of the accused or necessity for limiting the police powers did not feature in the Commission’s recommendations.

Notably, a 1963 study by the Indian Law Institute, Delhi observed that a physical and medical examination of the accused which is otherwise permissible under Art. 20 (3), could be denied if it was painful, dangerous or contrary to “human decency or civilised standards”.35 It noted that such grounds had been invoked in U.S.A., under the protection of due process of law. However, as such guarantee had not been interpreted in the Indian Constitution, the study recommended inclusion of adequate safeguards for the accused in the legislation permitting the medical examination.36

Subsequently, as per the Commission’s recommendation, the provision authorising examination of the body of the accused by a registered medical practitioner at the behest of the police, was borrowed from Criminal Code of Queensland (Australia), 1899 (now repealed).37 Sec. 53 of Cr.P.C., as it currently stands, permits examinations that may be ‘reasonably necessary’ to extract evidence of the commission of the offence, using ‘reasonable force’ if required.

31 H. L. Packer, THE LIMITS OF CRIMINAL SANCTION, 158 (1968) (Crime control model places primacy on ‘efficiency of criminal process’ in repressing criminal conduct as opposed to individual liberties). 32 Oghad, AIR 1961 SC 1808, at ¶ 12; See S. K. Jain, Cases and Comments – Article 20 (3) – Physical Examination of the Accused and Privilege Against Self Incrimination – State of Bombay v. Kathi Kalu Oghad, available at http://14.139.60.114:8080/jspui/bitstream/123456789/15039/1/037_Constitutional%20Law- Article%2020%283%29-Physical%20Examination%20%28552-559%29.pdf (Last visited on 21 May 2018). 33 41st Report of the Law Commission of India, The Code of Criminal Procedure 1898, Vol 1, 37 (1969); Supra note 30. 34 37th Report of the Law Commission of India, supra note 26, at 205-207. 35 Indian Law Institute, supra note 24, at 13-14. 36 Indian Law Institute, supra note 24, at 13-14. 37 Sec. 259, Criminal Code of Queensland, 1899 (now repealed). Queensland has significantly altered its law relating to examination of accused. See Chapters 17 and 18, Police Powers and Responsibilities Act, 2000 (Queensland). 6

Unpublished working draft Not for circulation

In 2005, the Cr.P.C. was amended to incorporate Secs. 53A and 164A on medical examination of the accused and victim of rape, respectively38 to address concerns of delay in examination and cursory reporting by medical practitioners.39 Thus, Sec. 53A requires prompt medical examination of the accused and preparation of report containing, amongst others, information regarding the age of accused, injuries on his person, description of material taken from his person for DNA profiling, and precise reasons for each conclusion.40 An explanation of ‘examination’ was also introduced in Sec. 53.41

Although the 84th report of the Commission preceding the amendment discussed the chronological stages and modes of conducting such examination42, the provisions introduced did not stipulate a systematic framework for examination of either the victim or accused of rape.43

The scheme of Sec. 53 and 53A of Cr. P.C. does not vest any rights in the accused to refuse the medical examination.44 However, it does require presence of “reasonable grounds” for believing that such examination would provide evidence of commission of the offence.45

The Court in Selvi,46 while deciding on the constitutionality of narcoanalysis, polygraph test and brain electrical activation profile test, made a reference to the High Court decisions47 which held that pain and discomfort caused in examination of private parts of rape accused or extraction of blood and semen samples was justified under Sec. 53 of Cr.P.C.48 In one such

38 The Code of Criminal Procedure (Amendment) Act, 2005. 39 84th Report of the Law Commission of India, Rape and Allied Offences: Some Questions of Substantive Law, Procedure and Evidence, 22 (1980). 40 Sec. 53A, Code of Criminal Procedure, 1973. 41 Explanation to Sec. 53, Code of Criminal Procedure, 1973 (Examination is defined as “examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case”). 42 David M. Paul, The Medical Examination in Sexual Offences, 15 (3) MEDICINE, SCIENCE AND THE LAW 154 (1975) as cited in 84th Report of the Law Commission of India, supra note 91. 43 Satish, supra note 4, at 45. 44 However, medical examination of the victim cannot be conducted without her consent. See Sec. 164A (7), Code of Criminal Procedure, 1973. 45 Sec. 53 / 53A, Code of Criminal Procedure, 1973. 46 Selvi v. State of Karnataka, (2010) 3 SCC (Cri) 1 (Supreme Court) (“Selvi”). 47 Jamshed v. State of Uttar Pradesh, (1976) Cr. L.J. 1680 (Allahabad High Court); Ananth Kumar Naik v. State of Andhra Pradesh, (1977) Cr. L.J. 1797, ¶19 (Andhra Pradesh High Court) as cited in Selvi, (2010) 3 SCC (Cri) 1. 48 See Shreemad Jagadguru Shankaracharya v. State of Karnataka, Writ Petition No. 49254 / 2014 (Karnataka High Court) (Recently, a challenge to constitutionality of Sec. 53A, Cr.P.C. was rejected by the High Court. The 7

Unpublished working draft Not for circulation

decision, the Court rejected the argument concerning usefulness of examining the blood and semen sample as ‘far-fetched’.49

In terms of scope of protection against self-incrimination, Selvi did not deviate from Oghad. Reiterating that the protection extends to compelled testimonial acts, it interpreted the phrase “such other tests” in the explanation of ‘examination’ under Sec. 53 of Cr.P.C., as tests concerning ‘physical evidence’, while holding that the three tests challenged before it lead to ‘testimonial acts’.50 Any “direct or derivative” use of such compelled testimony was held impermissible.51

However, what needs to be underscored is the Court’s reassertion that after Maneka Gandhi,52 any procedure established by law must be “fair, just and reasonable, and not fanciful, oppressive and arbitrary” and in conformity with other fundamental rights. Thus, adopting a ‘due process model’,53 the Court set out to weigh the concerns of efficient investigation against preservation of individual liberties.54

It examined the constitutionality of the three tests in the light of Art. 20 (3), substantive due process under Art. 2155 and various aspects of ‘personal liberty’ such as right to fair trial, right against cruel, degrading and inhumane treatment and right to privacy.56 While the Court did not delve on the question of admissibility of evidence obtained in violation of such fundamental rights other than Art. 20 (3), in its other decisions it has ruled against inadmissibility.57

Court noted that ‘ordinary exercise of police powers’ included physical restraint of extraction of bodily substances, with use of reasonable force, and this did not fall foul of Arts. 20 (3) and 21 of the Constitution). 49 Ananth Kumar Naik v. State of Andhra Pradesh, (1977) Cr. L.J. 1797, ¶ 22. 50 Selvi, (2010) 3 SCC (Cri) 1, ¶ 169-173. 51 Chandra, supra note 80, at 804. 52 Maneka Gandhi v. Union of India, AIR 1978 SC 597 (Supreme Court) (“Maneka Gandhi”). 53 Selvi, (2010) 3 SCC (Cri) 1, ¶206 (“While the infliction of a certain degree of pain and suffering is mandated by the law in the form of punishments for various offences, the same cannot be extended to all those who are questioned during the course of an investigation. Allowing the same would vest unlimited discretion and to lead to disproportionate exercise of police powers”); Packer, supra note 81, at 156-157 (Due process model places limits on the powers of the investigating agencies in order to prevent unjustifiable invasion of the security and privacy of an individual). 54 Selvi, (2010) 3 SCC (Cri) 1, ¶ 1. 55 Art. 21, Constitution of India, 1950 (“No person shall be deprived of his life or personal liberty except according to the procedure established by law”). 56 Selvi, (2010) 3 SCC (Cri) 1, ¶ 96 (The Court stated that constitutional values are infused in all branches of law, including procedural laws). 57 Chandra, supra note 29, at 804-805 (citing the decisions of Supreme Court in Yusufalli Esmail Nagree v. State of Maharashtra (AIR 1968 SC 147); R.M. Malkani v. State of Maharashtra ((1973) 1 SCC 471); Umesh Kumar v. State of Andhra Pradesh ((2013) 10 SCC 591). 8

Unpublished working draft Not for circulation

RIGHT TO PRIVACY

With the decision in Puttaswamy, the right to privacy is constitutionally protected under Art. 21 and other freedoms guaranteed under Part III of the Constitution. Privacy, which encompasses bodily integrity, personal information and decisional autonomy, has been held to be the core of dignity.58 Puttaswamy has secured the constitutional status of decisions like Selvi, which recognised ‘right to privacy’ as an intrinsic part of life and personal liberty.59 The right not only restrains the State from violating the privacy of an individual but also casts a positive obligation on the State to protect it, using all necessary measures.60

In Selvi, the Court drew a distinction between physical privacy and mental privacy. While violation of physical privacy during forced medical examination or extraction of bodily substances was stated as justified in the exercise of police powers, the Court held intrusions into the mental privacy as violative of Art. 20 (3) and personal liberty under Art. 21.61 Thus, tests involving involuntary interference with mental processes of the accused, such as narcoanalysis through intravenous injection of hypnotic drugs, are unconstitutional.62

Puttaswamy recognises the need for limitations on right to privacy. However, any limitation must conform with the constitutionally permissible restrictions to the respective freedom under Part III of the Constitution from which the privacy claim arises.63 Further, the plurality opinion authored by Chandrachud J., states that any violation of the right must satisfy the requirements of:

(i) legality; (ii) necessity, for furthering a legitimate aim of the State; and (iii) proportionality, understood as “rational nexus between objects and means adopted”.64

58 K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, ¶ 318 (“Puttaswamy”). 59 Puttaswamy, (2017) 10 SCC 1, ¶¶ 85, 99, 515 and 652; Gautam Bhatia, The Supreme Court’s Right to Privacy Judgment-III: Privacy, Surveillance, and the Body (29 August 2017) available at https://indconlawphil.wordpress.com/2017/08/29/the-supreme-courts-right-to-privacy-judgment-privacy- surveillance-and-the-body/ (Last visited on 21 May 2018). 60 Puttaswamy, (2017) 10 SCC 1, ¶ 326. 61 Selvi, (2010) 3 SCC (Cri) 1, ¶¶ 224-225. 62 Selvi, (2010) 3 SCC (Cri) 1, ¶¶ 262-265. 63 Puttaswamy, (2017) 10 SCC 1, ¶¶ 325 (Per Chandrachud J.), 379 (Per Chelameswar J.), 526 (Per Nariman J.), 427 (Per Bobde J.) (Thus, for claims of privacy under Art. 14, a reasonableness enquiry would follow. Likewise, express restrictions under Art. 19 would be examined if the right to privacy flows from freedoms under it). 64 Puttaswamy, (2017) 10 SCC 1, ¶ 325 (Per Chandrachud J.). See Bhatia, supra note 59, Puttaswamy, (2017) 10 SCC 1, ¶ 638 (Per Kaul J.) (arguing that Kaul J. gives a wider import to proportionality than the rational nexus 9

Unpublished working draft Not for circulation

Note that Court in Selvi, while acknowledging that balancing of ‘personal liberty’ and ‘public safety’ fell within the domain of the legislature, categorically stated that ‘invocations of compelling public interest’ cannot justify the limitations on the constitutionally guaranteed rights such as the protection against self-incrimination.65 However, after Puttaswamy, compelling state interest, subject to the principle of proportionality would justify the limitation on privacy.

RIGHT TO DIGNITY

In Court in Selvi, held that even though the Constitution did not expressly provide a right against cruel, inhuman and degrading treatment, Art. 21 contained sufficient basis for such right of persons in a custodial environment.66 The protections under Art. 20 (3) and 21 extended to any arrestee or detainee67, in a custodial environment, including a forensic laboratory or hospital, despite the absence of an “overbearing police presence”.68

Such protection not only extended to physical torture but also mental pain and agony. Thus, ‘forced intrusions’ into mental privacy were regarded as an assault on human dignity and liberty. While recognizing privacy as the core of dignity, the Supreme Court in Puttaswamy has held that dignity and liberty of individuals are the foundational pillars from which all other fundamental freedoms flow.69

SCIENTIFIC RELIABILITY OF TESTS AND FAIR TRIAL

The Selvi Court also appreciated the scientific reliability of the tests and linked it to the right to fair trial of the accused, which is a part of personal liberty under Art. 21.70

test, requiring the interference to be proportionate to the necessity claimed (minimal infringement for furthering the legitimate State aim). See also Puttaswamy, (2017) 10 SCC 1, ¶ 638 (Chelameshwar J.) (observing that certain privacy violations would deserve ‘strictest scrutiny’ of compelling state interest and require narrowly tailored interference, while others would have to be tested against ‘reasonable, just and fair’ standard under Art. 21). 65 Selvi, (2010) 3 SCC (Cri) 1, ¶¶ 256-257. 66 See generally Sunil Batra v. Delhi Administration, AIR 1978 SC 1675 (Supreme Court) (against solitary confinement); Sunil Batra v. Delhi Administration, AIR 1989 SC 1579 (Supreme Court); Prem Shankar Shukla v. Delhi Administration, AIR 1980 SC 1535 (Supreme Court) (against handcuffing of prisoners); Hussainara Khatoon v. Home Secretary, Bihar (1980) 1 SCC 81 (Supreme Court); D.K. Basu v. State of West Bengal, AIR 1997 SC 610 (Supreme Court). P. N. Bhagwati, Human Rights in the Criminal Justice System, 27 (1) JOURNAL OF INDIAN LAW INSTITUTE 1, 15 (1985). 67 Selvi, (2010) 3 SCC (Cri) 1, ¶ 195. 68 Selvi, (2010) 3 SCC (Cri) 1, ¶ 230. 69 Puttaswamy, (2017) 10 SCC 1, ¶ 318. 70 Selvi, (2010) 3 SCC (Cri) 1, ¶ 246-254. 10

Unpublished working draft Not for circulation

This aspect of medical examination is crucial not only for the accused, where standard of proving guilt beyond reasonable doubt necessitates scientifically sound evidence, but also for the victim if the reliability of her testimony is judged in the light of unscientific evidence.

11

Unpublished working draft Not for circulation

II. RESEARCH METHOD AND ITS LIMITATIONS The research study primarily involved a review of the prescribed protocols for medical examination of a rape accused in medical jurisprudence textbooks and an empirical research into the characteristic elements of such examination in practice. The empirical research was exploratory and qualitative in nature. It involved semi-structured interviews with two principal participants of the study - the police officers, who initiate the medical examination and the examining doctors.71

The interview schedules were designed to understand the basis of the decision to examine an accused, form and content of the police requisitions, protocols and procedures forming part of the medical examination, and the medical evidence ultimately obtained.72 They were also aimed at understanding the participants’ knowledge of the governing law, their perspectives as well as the institutional structures in which such examination was conducted. Where available, I reviewed the ‘medico-legal form’ or ‘medico-legal certificate’ (“MLC”) format in use at the hospitals, for reporting the findings of the medical examination.

The interviews were conducted between December 2017 and May 2018 in the selected hospitals and police stations of six cities - Bengaluru (Karnataka), Dehradun (Uttarakhand), Lucknow (Uttar Pradesh), New Delhi, Patna (Bihar) and Pune (Maharashtra).73 Selection of the cities was based on the total number of reported rape cases in these cities,74 scope of data collection, familiarity with the functioning of criminal justice system, and availability of local support.

I relied on the consultation with local partners to identify the hospitals where the accused were taken for medical examination, due to lack of reliable information in public domain. Except in Bengaluru, the targeted hospitals were run by the government.75 In a hospital, the accused were

71 Sec. 53A, Code of Criminal Procedure, 1973 (A police officer of the rank of a sub-inspector or above can request a medical examination of an accused. Such examination should be conducted by a registered medical practitioner who is employed in a public hospital, unless unavailable) 72 The initial interview schedule was significantly improved following my interaction with Dr. Jagadeesh N., Professor and Head, Department of Forensic Medicine, Vydehi Hospital, Bengaluru. 73 The names of the participants, the hospitals and police stations have been anonymised in this paper. 74 National Crime Records Bureau, Crimes Against Women (Metropolitan Cities) in CRIME IN INDIA 167 (2016) (The statistics include cases of penetrative sexual assault of female children under Secs. 4 and 6 of POCSO Act read with Sec. 376 of IPC, in 19 metropolitan cities which have a population of over 20 lakhs. Dehradun with a population of 17 lakhs (Census 2011) was not included. As per the figures released in 2016, Delhi, Pune and Bengaluru were among the top five metropolitan cities, Patna was in the bottom five, while Lucknow was in the middle at the twelfth position). 75 In Bengaluru, medical examination of the accused is conducted at both public and private hospitals. 12

Unpublished working draft Not for circulation

examined either in the emergency ward or department of forensic medicine.76 The police stations were randomly selected, and were either in the vicinity of the targeted hospitals or the head police stations in the city.

It is pertinent to note that the number of hospitals and police stations visited in each city varied depending on the approvals received for interviewing the participants (mostly government employees) from their higher authorities.77 Given the nature of duty of the participants, especially the doctors on emergency duty, the duration of the interviews and the extent of research findings also varied. Besides, as the participants were transferred regularly, the recent joinees were often unable to comment on the protocol of their current hospital or police station. They, however, shared their experiences from the past postings.

The stigma surrounding conversations about genitalia affected the research findings. A sense of discomfort prevailed when queries on local genital examination were put to some participants, who either rushed over the discussion or evaded follow up questions, stating that “in rape, only the medical examination of the victim is important”.78

With local support, I was able to extend the scope of the study in Lucknow and Delhi,79 where interacted with the lawyers appearing for the accused of rape and reviewed the medico-legal certificates filed in the cases handled by them.

What remained unexplored was the treatment of the medical evidence obtained from the accused in the Court, and its role in proving the offence of rape. I undertook a limited review of the recent judgments from the District and Sessions Courts of Delhi, Bengaluru and Dehradun, noting the observations recorded in relation to accused’s examination.80 However,

76 Usually in case of tertiary care hospitals, attached to a medical college. 77 The sample size (hospitals, police stations) is as follows: Lucknow (4,3), Delhi (3,2), Dehradun (3,3), Patna (1,0), Pune (1,2), Bengaluru (1,0). 78 Except one, all participant doctors were male. My identity as a female possibly a contributing factor to their discomfort in responding to my questions around male genitalia. At one occasion, my question on the relevance of noting ‘length of the penis’ in the medico-legal certificate led the doctor to advise me to refer to textbooks for understand the ‘obvious’ reasons for such recordings. 79 I am grateful to the team at Association at Advocacy and Legal Initiatives, Lucknow, for facilitating the interactions with the lawyers and public prosecutors, and to Advocate Seema Mishra in Delhi for granting access to her case files. 80 The judgments from Lucknow, Patna and Pune were either not available on the webpage of ‘ecourts’ (http://ecourts.gov.in/ ) or the webpage did not return results (Last visited on 9 June 2018). As the e-courts website did not provide a “free-text search” or a feature to limit the time period of the search, for Dehradun, I first obtained the list of cases disposed under Sec. 376 of IPC and provisions of POCSO Act using the ‘act’ search feature under the ‘case status’ tab. Using these details, I downloaded the ‘court order’ pertaining to those cases. Out of the 40 cases, ‘orders’ or ‘judgments’ were available for only 12 cases.

13

Unpublished working draft Not for circulation

the number of judgments reviewed and the time frames varied depending on their availability and accessibility online, and of features to undertake a targeted search. In Lucknow, I also reviewed court records of twenty-five pending and seventeen decided cases.

Admittedly, a shortcoming of this research is non-uniformity of the methods and extent of findings. The findings are insufficient to conclusively state the practices in accused’s examination in a target city or hospital. However, they are significant in revealing some of its underlying issues that need consideration.

III. UNDERSTANDING MEDICAL EVIDENCE IN RAPE

The 2013 Amendment to the IPC81 broadened the ambit of penetrative acts as well as circumstances constituting rape and aggravated rape, moving away from an understanding based on penile-vaginal penetration.82 Presently, the following acts when committed by a man on a woman or when made to be done by the woman with him or another person, against her will or without her consent or under any other circumstances specified in Sec. 375,83 amount to rape:84

(i) penile penetration, to any extent, into the vagina, mouth, urethra or anus; (ii) insertion of any object or body part other than penis, to any extent, into the vagina, urethra or anus; (iii) manipulation of any part of her body in order to cause penetration into the vagina, urethra, anus or any part of her body;85

However, for Delhi and Bangalore, given the volume of the data returned by this method, I relied on an alternate search engine, Indian Kanoon (http://indiankanoon.org/browse/) , which sources the judgments from the website of the district courts and provides an option for a ‘free-text’ search for a limited period, allowing one to review the latest decisions.

For Delhi: All judgments returned by the word search for ‘rape in the decisions from March 2018 and ‘potency test’ and ‘rape’ in the decisions from 1 January 2018 to 31 March 2018 were reviewed. Note that for potency tests, maximum results were retuned by use of afore-mentioned key words, as opposed to key words such as “incapable of performing sexual intercourse” or “potent”. (total: 36)

For Bangalore: the judgments returned by a free-text search for the word ‘rape’ on Indian Kanoon for the period between 1 January 2018 and 31 March 2018 were reviewed (total:19) 81 Criminal Law (Amendment) Act, 2013. 82 Though, even partial penetration into the labia majora of female external genitalia, with or without ejaculation of semen, could amount to rape. 83 Cls. Third to Seventh of Sec. 375, Indian Penal Code, 1860. 84 Sec. 375 (a) to (d), Indian Penal Code, 1860. 85 See Satish, supra note 4, at 230 (arguing that Cl. (c) of Sec. 375 defining rape as manipulation of any part of a woman’s body to cause penetration into any part of her body equates criminal force involving penetration with rape) 14

Unpublished working draft Not for circulation

(iv) application of mouth to the vagina, urethra or anus.

The substituted Sec. 375 of IPC mirrors the provision defining ‘penetrative sexual assault’ on children under the POCSO Act.86 However, unlike Sec. 375, POCSO Act is gender neutral. The 2013 Act has also introduced a positive and particularised definition of consent accepting that lack of physical resistance by the woman shall not be regarded as consent to the penetrative act.87

Broadly, the determination of offence of rape requires proof of penetrative act in the absence of consent.88 As noted, conviction in a rape trial can be secured on the basis of ‘sole testimony of the victim’, without corroboration from any other evidence, if her testimony inspires confidence and is reliable.89 Where available, medical evidence plays an important corroborative role in strengthening the victim’s testimony,90 in proving the occurrence of ‘penetrative act’ and linking it with the accused. However, its absence itself cannot disprove rape.91

Medical evidence may be relevant in establishing ‘absence of consent’ due to unconsciousness of mind caused by intoxication or stupefying substances; any medical condition which renders the woman incapable of communicating consent; and in the absence of documentary proof, the victim’s age.92 It may also indicate if the penetrative act was violent.93

Dr. Jagadeesh N., groups the medical evidence available in rape cases into five categories:94 (i) Trace evidence, depending on the nature of penetrative act and crime scene, may range from semen stains, seminal fluid in genital passage, blood, hair, cells, spermatozoa,

86 Sec. 3, Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”). 87 Explanation to Sec. 375, Indian Penal Code, 1860 gives statutory recognition to the dictum in Rao Harnarain Singh v. State, AIR 1958 Punj 123 (Punjab and Haryana High Court) (opining that ‘helpless resignation’ or submission in the face of fear or terror cannot be deemed to be consent). 88 Mitra, supra note 1, at 52; Das, supra note 4, at 2413. 89 See Rameshwar v. State of Rajasthan, AIR 1952 SC 54 (Supreme Court); Rafiq v. State of Uttar Pradesh, (1980) 4 SCC 262, at ¶ 5 (Supreme Court); State of Punjab v. Gurmit Singh, (1996) 2 SCC 384, at ¶ 9 (Supreme Court). 90 Bharwada Bhoginbhai Hirjibhai, (1983) 3 SCC 17, at ¶11 (Supreme Court); Madan Gopak Kakkad v. Naval Dubey, (1992) 3 SCC 204, at ¶23. 91 Narayanamma v. State of Karnataka, (1994) 5 SCC 728 (Supreme Court); State of Himachal Pradesh v. Lekhraj (2000) SCC (Cr) 147 (Supreme Court); Mukesh v. State of Chhattisgarh, (2014) 10 SCC 327, at ¶15 (Supreme Court). 92 Cls. Fifth, Sixth and Seventh of Sec. 375, Indian Penal Code, 1860. 93 Satish, supra note 4, at 45. 94 Jagadeesh N., Appreciation of Medical Evidence by Special Courts in POCSO Cases in IMPLEMENTATION OF THE POCSO ACT, 2012 BY SPECIAL COURTS: CHALLENGES AND ISSUES 97 (CCL, NLSIU) (2018) 15

Unpublished working draft Not for circulation

body fluids etc. Through DNA detection, which has its limitations,95 such evidence found on the body of the victim and accused may prove contact between them.96

Availability of trace evidence may be affected by, amongst others, post-assault activities, time gap between the incident and medical examination, manner of collection and nature of laboratory testing.97 Its presence is less likely in case of non-penile-vaginal penetrative acts.

(ii) Injuries, depending on their age and degree of healing, when present on the bodies of the victim and accused may indicate violent intercourse.

(iii) Sexually transmitted diseases detected on the victim and accused may also serve as an evidence of contact between them. Given that detection of such evidence, depending on the incubation period of the infection, may require more than one medical examination and corroboration of findings between victim and accused subsequently, such evidence is rarely tapped.98

(iv) Pregnancy and accompanied complications, in case of penile-vaginal penetration.99

(v) Evidence of treatment sought post-sexual assault and its documentation, especially in case of victim where provision of treatment is mandated by law100, may serve as an indirect evidence of her medical condition.101

IV. MEDICAL EXAMINATION OF RAPE ACCUSED

A. DECISION TO EXAMINE

I. ‘REASONABLE GROUNDS’ FOR MEDICAL EXAMINATION

Interactions with police officers revealed three approaches to requisitioning medical examination of the accused:

95 Jagadeesh N., supra note 93, at 99 (Such as DNA detection of seminal stain is effective only if the sample is not denatured. In case of ‘touch DNA’, the author explains that the amount of DNA transferred depends on various factors such as DNA shedder status, type and duration of contact and pressure exerted during contact). 96 Jagadeesh N., supra note 93, at 98; Parikh, supra note 8, at 479. 97 Jagadeesh N., supra note 93, at 98-99 (Despite this, DNA tests are not conducted in all cases); See Tameezuddin, (2009) 15 SCC 566. 98 Jagadeesh N., supra note 93, at 102. 99 Jagadeesh N., supra note 93, at 103. 100 Sec. 357C, Code of Criminal Procedure, 1973; Sec. 166B, Indian Penal Code, 1860. 101 Jagadeesh N., supra note 93, at 104 (suggesting that it may be fruitful to tap such evidence instead of trace evidence, injuries or sexually transmitted infections which may not always be present). 16

Unpublished working draft Not for circulation

(i) not requisitioned in any case;102 (ii) requisitioned in all cases;103 (iii) requisitioned only in ‘fresh’ cases.104

At one police station, the police officers categorically stated that in rape cases only the victim was sent for medical examination and there was “no practice” of medical examination of accused. When asked if this could lead to loss of useful evidence,105 a police officer denied the possibility stating that the charge of rape was such “nothing [could] help the accused escape conviction”.

On the other hand, some police officers stated that a rape accused was always sent for medical examination. One of them reasoned, “[T]here is a requirement in every case. Even touching can be rape, but we do it”.

In two instances, the police officers hinted that medical examination of the accused may yield useful evidence depending on the alleged offence and the time lapsed.106 They did not requisition a medical examination if there was a delay in apprehending the accused (not ‘fresh’), as it would not serve any purpose. While one of them recorded the reason for not conducting the medical examination, the other argued that it could be inferred from the date of incident and date of arrest recorded in the case diary.

None of them had encountered a case involving non-penile-vaginal penetrative act. Some opined that accused’s examination would be irrelevant in case of digital penetration. However, one police officer observed that in case of penetration by body parts such as fingers, swabs from the hands would be relevant if the accused is apprehended immediately.

II. DETERMINING THE ‘NECESSARY’ EXAMINATION

102 Fieldnotes from Lucknow, at PS 1. Out of the 42 case records reviewed at District and Sessions Court, Lucknow, 29 had no mention or record of medical examination of the accused. Only 8 case files contained the medico-legal report. In the remaining, recordings in the case diary or receipt of samples sent for forensic examination suggested that such medical examination was conducted. In none of the decided cases, the testimony of examining doctor was recorded or mentioned. When questioned about the missing records, the special public prosecutor said that the investigating officers often did not provide the report of the accused’s examination. 103 Fieldnotes from Delhi, at PS 1 and PS 2; Fieldnotes from Pune, at PS 1 and PS 2; Fieldnotes from Lucknow, at PS 3. 104 Fieldnotes from Lucknow; at PS 2; Fieldnotes from Dehradun, at PS. 105 Jagadeesh N., supra note 93. 106 Fieldnotes from Dehradun, at PS; Fieldnotes from Lucknow, at PS 2. 17

Unpublished working draft Not for circulation

A request for medical examination takes the form of a written application to the hospital, called “police requisition”. Usually, it records the details of the accused, information on alleged offence, and a request for medical examination and collection of samples. Upon receiving the request, examining doctor conducts “such examination”,107 and “such other tests” which he thinks are necessary in a particular case.108

109 Interactions with doctors and police officers, and review of the Information in 110 Requisitions police requisitions received at some hospitals, revealed that in a (City-Wise Data) majority of cases, the only information on alleged offence contained 17% in the police requisition was its relevant ‘section number’ under the 50% 33% IPC. A brief account of the nature of allegation was included along with the section number in two cities.111 While in one, a copy of the Only Section FIR was provided.112 Section and Crime History Section and FIR Copy The police requisitions either ended with a general request for internal and external examination;113 or contained specific requests for samples (such as semen and blood sample),114 examination of injuries, or opinion on ‘potency’.115 A requisition translated by a doctor sought collection of blood, pubic hair and other relevant samples, and opinion on whether the accused was “capable of performing sexual intercourse” and if there was evidence of “recent intercourse”.116

107 See Secs. 53A, Code of Criminal Procedure, 1973. 108 Explanation (a) to Sec. 53, Code of Criminal Procedure, 1973. 109 Fieldnotes from Delhi, at H1, H2, H3, PS1, PS2, Advocate; Fieldnotes from Patna, at H; Fieldnotes from Dehradun, at PS, H1, H2, H3 110 Fieldnotes from Dehradun, at H2 (Review of the ‘Police MLC Register’ maintained at H2 affirmed this. ‘Police MLC Register’ is a common record book of medico-legal certificates (“MLCs”) pertaining to all medical examinations conducted at the request of the police. A typical requisition stated the name and age of the accused, section number of the offence (‘Sec 376’) and ended with a request for examination of the accused); Fieldnotes from Delhi, at H2 (Requisitions were printed in standard format, providing space for including the name and age of the accused, section number of the offence, and ended with a request for medical examination). 111 Fieldnotes from Pune, at H; Fieldnotes from Bengaluru, at H. 112 Fieldnotes from Lucknow. FIR stands for ‘First Information Report’ to the police under Sec. 154, Code of Criminal Procedure, 1973. 113 Fieldnotes from Lucknow, at H1, H2, PS1 (Requisition recording the name of the accused, section number was accompanied with a copy of the FIR); Fieldnotes from Dehradun, at H2. 114 Fieldnotes from Delhi, at H2. 115 Fieldnotes from Delhi, at H2, Advocate (requesting opinion on whether the accused was “capable or not”; “capable of performing a sexual act”); Fieldnotes from Bengaluru, at H. 116 Fieldnotes from Bangalore, at H; 18

Unpublished working draft Not for circulation

A majority of the doctors referred to the ‘routine’ medical examination in all cases of rape and sexual assault.117 They proceeded by looking at the section number (such as “Sec. 376”), 118 without obtaining the crime history, and conducted all the tests and collected all the samples.119

Where a copy of the FIR was provided, the participant doctors “See, history is not generally read it before examining the accused.120 Two among relevant as such. We do our work” them, sought information orally from the constable accompanying “Ultimately if the accused, who would either point them to the section number or something happens, a be “mostly clueless”.121 A police officer regrettably noted that even doctor has to answer in the Court. So we though the constables were instructed to brief the doctors, it seldom complete the routine from out end” happened.122 In either case, the doctors completed the ‘routine’.123

In most cases, this implied strict adherence to the ‘medico-legal form’ in use at the hospital for reporting the findings of accused’s examination.124 Notably, in two hospitals, Proforma for Victims was also followed for examining the accused.125 As the constables often failed to explain the nature of the crime, a police officer confirmed that the doctors conducted all tests and sealed all samples for forensic examination, irrespective of its relevance.126 In a peculiar instance (discussed subsequently), this resulted in collection of accused’s semen samples.127

117 Fieldnotes from Dehradun, at H1, H2, H3; Fieldnotes from Lucknow, at H1, H2, H3, H4; Fieldnotes from Delhi, at H2, H3; Fieldnotes from Patna, at H. 118 Recall that the nature of penetrative acts and circumstances amounting to rape are defined under Sec. 375 of the IPC. Whereas Sec. 376 of the IPC provides the punishment for rape. 119 Fieldnotes from Dehradun, at H1, H2, H3; Fieldnotes from Lucknow, at H2, H3; Fieldnotes from Delhi, at H2 and H3; Fieldnotes from Patna, at H. 120 Fieldnotes from Lucknow, at H1, H2, H3, H4. 121 Fieldnotes from Lucknow, at H2, H3, 122 Fieldnotes from Lucknow, at PS3. 123 Fieldnotes from Lucknow, at H2, H3. 124 Fieldnotes from Lucknow, at H1, H2, H3, H4; Fieldnotes from Delhi, at H1 (No medico-legal form but the doctors had a standard format for reporting); Fieldnotes from Patna, at H. 125 See supra note 13 (Recall that Proforma for Victims is the format for medico-legal report prescribed in the 2014 Guidelines); Fieldnotes from Lucknow, at H3, H4, District Court (The same was noted in one of the case records reviewed at the District & Sessions Court, Lucknow. The special public prosecutor also confirmed that in recent cases, a new medico-legal form for the accused was filed, which was same as the one for the victims). 126 Fieldnotes from Lucknow, at PS3 (The police officer at the neighbouring police station recalled that in one case where the accused was arrested weeks after the incident, the doctors seized his ‘fresh’ clothes, not worn at the time of the incident, and sent it for forensic examination). 127 See Part IV, sub-section B(IV) below on “Collection of Semen Samples”. 19

Unpublished working draft Not for circulation

However, another police officer said that if an irrelevant sample was sealed by the doctors and a negative forensic report was received, he did not make a record in the case diary as it would serve “no other purpose other than weakening the prosecution’s case”.128

None of the doctors could recall cases where the alleged act was not penile-vaginal penetration or penile-anal penetration.129 A few opined that ‘offence specific’ examination was a concern only in victim’s examination.130 One of them observed that in cases not involving penile- vaginal penetration, a change in protocol would be necessary for the victim’s examination and not the accused.131

III. GROUNDING THE ‘ROUTINE’ IN HISTORY

Sec. 53A of the Cr. P.C. requires presence of “reasonable grounds” indicating that medical examination of the accused would yield evidence as to the commission of the offence.132 Except in instances where delay in apprehending the accused was factored in requisitioning the medical examination, nature of alleged act, type of evidence that may be available on the body of the accused and factors that may affect its availability (such as the time lapsed since the offence and post-assault activities),133 were not considered by the police.

From the point of view of investigation, this could lead to loss of useful corroborative evidence134 or collection of irrelevant evidence. Further, ‘reverence to routine’ in either requisitioning medical examination or in its conduct, falls foul of the statutory requirement of reasonable grounds, as well as the constitutional rights of the accused.135

Sec. 53 of Cr. P.C. which deals with medical examination in general offences, states that the doctor can conduct such examination as may be “reasonably necessary” to ascertain the facts relate to the commission of the offence.136 A similar phrase does not appear in Sec. 53A. However, given that the purpose of the examination is to obtain “evidence as to the commission

128 Fieldnotes from Lucknow, at PS2. 129 Though, in the cases of penile-anal penetration mentioned involved male victims, mostly minors. 130 Fieldnotes from Dehradun, at H1; Fieldnotes from Delhi, at H2. 131 Fieldnotes from Lucknow, at H1. 132 Sec. 53A, Code of Criminal Procedure, 1973. 133 Jagadeesh N., supra note 93. 134 Fieldnotes from Dehradun, at P1 (A retired official of the Department of Medical Health and Family Welfare said that in case of ‘fingering’ by an accused, trace evidence ought to be taken by swabbing his hands in ‘fresh’ cases but the doctors were never made aware of the entire crime and clinical history). 135 See Part I above on “Law on Accused’s Examination”. See also Maneka Gandhi, AIR 1978 SC 597, ¶ 21 (“the procedure prescribed by law has to be fair, just and reasonable, not fanciful, oppressive or arbitrary”); H. L. Packer, THE LIMITS OF CRIMINAL SANCTION, 156 (1968). 136 Sec. 53, Code of Criminal Procedure, 1973. 20

Unpublished working draft Not for circulation

of [rape]”,137 interpreting it literally to mean any examination unrelated to the offence, whether requested by the police or part of the ‘routine’, would infringe upon the right to privacy and bodily integrity of the accused, as well as right to fair trial.138

Note that medical examination and evidence collection under 2014 Guidelines is guided by crime history and science. The guidelines provide indicative tables on the type of evidence to be collected depending on the history of crime, purpose and relevance of such evidence, and factors to be considered before its collection.139 Interestingly, these considerations were ignored even where the Proforma for Victims was followed for the accused’s examination.140

Sourcing History from the Accused?

Some participant doctors obtained the crime history from the investigating officer,141 the constable accompanying the accused, or the accused himself.142 A participant doctor said that most accused admitted the offence and he proceeded with the tests accordingly.143 In fact, a proforma released by Medico-Legal Association of Maharashtra,144 requires noting of history of the crime “as given to police”145 and “as given by the alleged accused”. As part of the latter, following information is obtained from the accused:

(i) If he admits or denies the incidence (account of incidence as per his statement) (ii) Did he know the victim before

In Proforma for Victims, detailed history of sexual violence is to be recorded, including the history narrated by the victim or the informant.146 As a consequence of following the same proforma for the accused’s examination, the history of crime narrated in accused’s words formed part of the medico-legal report.147

137 Sec. 53A, Code of Criminal Procedure, 1973. 138 Supra note 134. 139 See Annexures 2 and 4, 2014 Guidelines, supra note 8 (For instance, persistence of injury over time). 140 Fieldnotes from Lucknow, at H3, H4. 141 Fieldnotes from Delhi, at H1 (The doctors directly contacted the investigating officer for a brief history of crime. They reasoned that this was essential for collection of trace evidence in cases of digital penetration). 142 Fieldnotes from Lucknow, at H3. 143 Fieldnotes from Lucknow, at H1. 144 Medico Legal Association of Maharashtra, Proforma for Medical Examination of the Accused, available at http://www.mlam.in/pdf/medicolegalreports/accusedofrape.pdf (Last visited on 15 January 2020). 145 This may refer to the history of the crime given by the victim to the police. 146 2014 Guidelines, supra note 13, at 64-66, ¶¶ 15A-15F. 147 Fieldnotes from Lucknow, at H3 (As noted during the review of the case records at the District & Sessions Court, Lucknow). 21

Unpublished working draft Not for circulation

During a medical examination, the arrested person stands in the “character of an accused” in a custodial environment.148 Such questions which require him to convey facts within his personal knowledge,149 will invoke the protection against self-incrimination under Art. 20 (3) and his right to silence.150 As held in Selvi, any “direct or derivate use” of a compelled testimony is impermissible.151 Where the said proforma records the “consent in writing”,152 complexities arise as to whether a consent given for ‘examination’153 can be relied on to argue that the testimony was not compelled.154 As an aside, there lies a risk that accused’s account may not be reliable and medical examination directed by such history may be compromised.

Corroboration of Findings

Some participants observed that lack of coordination between the doctors conducting the victim’s and the accused’s examination leaves little room for targeted examination or corroboration of findings. Corroboration, if any, is done by the police.

Medical jurisprudence textbooks usually begin with a recommendation that the medical examination of the victim should be conducted first, and thereafter accused should be examined by the same doctor.155 In one instance, a hospital had appointed two dedicated teams for medical examination of the victim and the accused, and in a given case both were examined by the same team examined.156 However, in other places, the victim and the accused were either taken to different hospitals for examination or even when examined at the same hospital, they were referred to different departments.157

B. CHARACTERISTIC ELEMENTS OF MEDICAL EXAMINATION

Generally, medical examination of an accused comprises of a general examination (including physical examination, systemic examination and injuries examination), local examination of the genitalia and potency test.158

148 Selvi v. State of Karnataka, (2010) 3 SCC (Cri) 1, ¶ 195 (Supreme Court). 149 Chandra, supra note 18. 150 Nandini Sathpathy v. P. L. Dani, (1978) 2 SCC 424 (Supreme Court). 151 Chandra, supra note 18, at 804. 152 Medico-Legal Association of Maharashtra, supra note 143; 2014 Guidelines, supra note 13, at 62. 153 Explanation (a) to Sec. 53, Code of Criminal Procedure, 1973. 154 Chandra, supra note 18, at 804. 155 See for instance Gautam Biswas, REVIEW OF FORENSIC MEDICINE AND TOXICOLOGY, 384 (3rd edn.,2015); Anil Aggarwal, ESSENTIALS OF FORENSIC MEDICINE AND TOXICOLOGY 356 (2016). 156 Fieldnotes from Patna, at H. 157 Victim’s examination is usually in the Gynaecology Department. 158 Raheel, supra note 21, at 334 (2016). 22

Unpublished working draft Not for circulation

I. PRELIMINARIES AND GENERAL EXAMINATION

All examinations begin with recording of preliminary information, which often includes information about the accused’s marital status, religion, built and “physical powers”.159 While on the face of it such information may seem innocuous, it often reinforces the stereotypes and myths around rape. For instance, while discussing the procedures in medical examination, a doctor explained that ‘marital status’ of accused was one of the most important details as “[t]he chances of rape are less if the accused is married, whereas a divorced man's mental state may be disturbed increasing the chances of rape”.160

Two doctors stated that evidence of resistance or ‘signs of struggle’ on the body of the accused or the victim must be present in a ‘real rape’. While one of them said that absence of such signs meant there was compromise and not rape, another used hand gestures to explain that: “[If] ‘it’ is consensual, the scratches will be on the back [of the accused]. If ‘it’ is non-consensual, scratches will be in the front”.161

Further, it may be argued that markers such as ‘height’, ‘weight’ and ‘built’ could be useful in identifying the accused or noting his general well-being.162 However, evidence indicates that they are often used to assess victim’s ability to resist the accused.163

II. LOCAL GENITAL EXAMINATION

Medical jurisprudence textbooks prescribe local genital examination as part of the medical examination of the accused for recording injuries, collection of trace evidence and development

159 See for instance Aggarwal, supra note 154, at 357. 160 Fieldnotes from Lucknow, at H1. 161 Fieldnotes from Lucknow, at H2 (“If there is real rape, there would be injuries”); Fieldnotes from Dehradun, at H2. See also Elizabeth Kolsky, The Body Evidencing the Crime: Rape on Trial in Colonial India, 1860-1947, 22 (1) GENDER & HISTORY 109, 114-115, 123-126 (2010). 162 At one hospital, body mass index was recorded as part of the preliminary information. The explanation provided that it was needed to assess whether if the accused was malnourished. 163 MODI: A TEXTBOOK OF MEDICAL JURISPRUDENCE AND TOXICOLOGY 672 (K.Kannan J. and K. Mathiharan eds., 24th edn., 2011) (“physical built of the accused as compared with those of victim”); Parikh, supra note 8, at 401 (“size and physique of the alleged assailant to determine the ability of the victim to offer resistance and to assess genital injuries sustained by her”); S.K. Lahiri, ELEMENTS OF MEDICAL JURISPRUDENCE: FOR LAWYERS, MAGISTRATES, MEDICAL MEN AND POLICE OFFICERS, at 120 (On recording the physique of the accused to ascertain if he could have committed the act single handedly); see generally on built Neeraj v. State of NCT of Delhi, 2017 SCCOnLine Del 12359 (Delhi High Court); Santosh v. NCT of Delhi, 2017 SCCOnLine Del 9546; State v. Jai Bhagwan Pandla, SC 64 /14 (2014) (Delhi District Court, Dwarka), at ¶ 26 (“Jai Bhagwan”) (“Accused is a 73 years old person with fragile and infirm body…difficult to believe that [he]…would succeed in committing forcible sexual intercourse upon a lady like the prosecutrix and that too repeatedly”). 23

Unpublished working draft Not for circulation

of genitals.164 A participant doctor remarked that ‘complete body examination’ includes a local genital examination and even if the findings are ‘normal’ they have to be reported.165

The findings recorded in the medico-legal certificates pertained to pattern and distribution of pubic hairs, size of penis, presence of smegma, development of scrotal sac and testes.166 A medico-legal form of a hospital also sought information on ‘masturbation’ and ‘night fall’, for assessment of development of secondary sexual characteristics in a juvenile.167

When questioned on the relevance of these findings, a doctor said that development of secondary sexual characters was done to determine if he is capable “Genital examination of performing sexual intercourse. However, a visual inspection of will be conducted even when you know nothing genitalia was found to be ‘routine’, even where opinion on accused’s will come out of it” capability or potency was not requested.168

Such examination was said to be useful for detecting ‘false cases’, where a person lacking scrotum or having an abnormal penis was accused of rape. Evidencing the another rape myth, a participant doctor while emphasizing on the relevance of the examination said that, “[I]n case of a ‘virgin’s rape’ glans are the most injured”. He added that presence of smegma was noted, though it does not conclusively disprove rape.169

Subject to its limitations, depending on the crime history (nature of penetrative act or likelihood of presence of injuries), local genital examination may provide useful evidence.170 However, unawareness about the actual offence and sketchy requisitions, lead some of the doctors to conduct local genital examination for evidence and deformities which could exonerate or

164 Modi, supra note 162, at 672 (“a complete general physical examination must be done and noted; …record the development of his genitals….”); J.B. Mukherjee, FORENSIC MEDICINE AND TOXICOLOGY, Vol. 2, 580-581 (2edn., 1994) (A complete physical examination including secondary sexual characters is suggested, especially when the age is to be determined). 165 The medico-legal forms reviewed in Lucknow contained findings stating “normal” below the diagram of male genitalia. A doctor subsequently explained that a “normal” finding is recorded if on external examination no injuries, infections or genital abnormalities are found. 166 Fieldnotes from Delhi, at H1, Advocate. 167 Fieldnotes from Lucknow, at H1. 168 See for instance, Fieldnotes from Lucknow, at H1, H2; Fieldnotes from Delhi, at H1, H3; Fieldnotes from Dehradun, at H1; Fieldnotes from Patna, at H. 169 See Aggarwal, supra note 154; Fieldnotes from Lucknow, at H1. 170 Jagadeesh N., supra note 93. 24

Unpublished working draft Not for circulation

convict the accused.171 However, given the focus of the ‘routine’ examination, such evidence would be relevant only where the alleged act is penile(-vaginal) penetration.

A Case of (Un)due Diligence

In one instance, a participant doctor said that an anatomical assessment of genital development (normal and abnormal) would be done even in case of general medical examination on arrest of a person who may be accused of committing any offence as it was part of the routine.172

Note that under Sec. 54 of Cr.P.C. ‘examination’ of arrested persons is mandatory173 and unlike Secs. 53 and 53A it does not contain a ‘reasonable grounds’ requirement as a precondition to examination. It is arguable that such ‘examination’, drawing from the explanation to Sec. 53 of Cr.P.C,174 would permit a wide range of examinations and tests including those peculiar to sexual offences. However, a look at Sec. 54 (2), Cr.P.C reveals that the purpose of such examination is to record “any injuries or marks of violence” along with approximate time of their infliction on the person arrested.

The Code of Criminal Procedure (Amendment) Act, 2008, which substituted the provision, introduced amendments with respect to grounds of arrest, procedure for arrest, rights of arrested person and a provision requiring “reasonable care of health and safety of the accused” in tune with the guidelines in D.K. Basu v. State of West Bengal.175 In this background, the argument that such examination under Sec. 54, Cr.P.C., is meant for “recording all findings” that may “exonerate or convict” the accused, given that the examining doctor is unaware of the actual offence committed at the time of examination,176 runs counter to the legislative intent targeting arbitrary arrests and custodial torture.

III. POTENCY TESTS

171 See for instance Fieldnotes from Delhi, at H1, H2; Fieldnotes from Pune, at H; Fieldnotes from Lucknow, at H1, H2. 172 Fieldnotes from Delhi, at H1; Sec. 54, Code of Criminal Procedure, 1973. 173 Prior to its amendment in 2009, an arrested person could make a request for medical examination to a Magistrate stating that such examination would disprove the commission of offence by him or prove commission of offence on his body by another person. If the request did not appear to be vexatious, for causing delay or defeating the ends of justice, the Magistrate could order such examination. 174 Explanation (a) to Sec. 53, Code of Criminal Procedure, 1973. 175 Code of Criminal Procedure (Amendment) Act, 2008; See Secs, 41, 41-A, 41-B, 41-C, 41-D, 55A, Code of Criminal Procedure, 1973; D.K. Basu v. State of West Bengal, (1997) 1 SCC 416 (Supreme Court) (One of guidelines insisted on medical examination of an arrested person detained in custody at every 48 hours). 176 Fieldnotes from Delhi, at H1 (The doctor remarked that recording of genital development would be important even in case of a person arrested for an offence, other than sexual offences, such as “theft”). 25

Unpublished working draft Not for circulation

A distinctive feature of the medical examination of the accused is the determination of his capability to perform the sexual act.177 Colloquially termed as ‘potency test’, it is generally associated with ‘erectile dysfunction’, the inability to obtain penile erection sufficient for sexual intercourse (primarily vaginal penetration).178 An opinion on potency is expressed in a ‘double negative’ statement.179

A diagnosis of potency requires assessment of the anatomical and pathological factors, as well as physiological and psychological factors.180 Physical examination includes anatomical assessment, systemic examination, and neurological assessment of genital sensitivity and reflexes.181 While determination of psychological impotence is difficult,182 a number of neurological tests may be conducted alongside the physical examination.183

The protocols for determination of potency at the hospitals varied, primarily depending on the available facilities.184 However, they may be classified under three heads:

(i) Anatomical assessment: Development of secondary sexual characteristics and genitals185

177 Modi, supra note 162, at 672-73 (An opinion on capability is stated to be a part of the medical examination report of the accused. Although in the same vein, the textbook highlights the issue with routine potency tests that are often understood as ‘masturbation’ test, and emphasises on the necessity of a detailed investigation, involving psychiatric assessment of potency); Biswas, supra note 154, at 384 (Local examination includes a component on development of genitals with “special reference to potency”); Parikh, supra note 8, at 402, 404; K.S.N. Reddy and O P Murty, THE ESSENTIALS OF FORENSIC MEDICINE & TOXICOLOGY, at 397-398 (34th edn., 2017); Vij, supra note 7, at 308; Aggarwal, supra note 154, at 357 (Development of genital organs and physical powers should be noted for comparison with victim to ascertain the capacity to overpower. Further, recommends conduct of an “examination for erectile dysfunction [impotency]”). 178 Aggarwal, supra note 154, at 357; See generally, Lavlesh Kumar, An Approach to Examination of a Case of Erectile Dysfunction in RECENT ADVANCES IN FORENSIC MEDICINE AND TOXICOLOGY, Vol. 2, , 177, 183 (Gautam Biswas ed., 2018). 179 Parikh, supra note 56, at 404 (“There is nothing to suggest that the said accused is incapable of performing sexual intercourse”); Vij, supra note 7, at 308, 376. 180 Raheel, supra note 21, at 2. 181 Kumar, supra note 177, at 190. 182 Jagadeesh N., supra note 17, at 39. 183 Raheel, supra note 21, at 2; Kumar, supra note 71, at 192 (These include blood tests for hormones and diabetes; nocturnal penile tumescence and rigidity, intra-cavernosal of vasoactive substance, duplex doppler ultrasonography combined with intra-cavernosal injection, arteriography, cavernometry and cavernosography through dynamic infusion). 184 Fieldnotes from Dehradun, at H2; Fieldnotes from Pune, at H. 185 This would include cases where size of the penis in erect or flaccid state, development of testes, glans and pubic hairs, or abnormalities were noted. No satisfactory answer could be obtained from the doctors on the relevance of such detail. A subsequent review of the medical jurisprudence textbooks revealed that recording of genital development is recommended as part of the protocol. Length of erect penis may also be noted as part of the anatomical assessment of potency to assess if the penile development is of the “adult state or infantile”. See generally Cyril John Polson and D.G. Gee, THE ESSENTIALS OF FORENSIC MEDICINE, 404 (3rd edn., 1973) (“It is of greater moment to note the size of penis and to determine whether the man is impotent or impotent”); But see 26

Unpublished working draft Not for circulation

As noted above, in all hospitals but one, anatomical assessment of the accused was always conducted, irrespective of whether an opinion on ‘potency’ had been requested.

(ii) Neurological assessment: Recording of sensation, erection and retraction through stimulation.

In some hospitals, neurological assessment was conducted if the police requisitioned for potency test.186 Notably, in one hospital, it was part of the ‘routine’ examination.187

(iii) Neurological tests including injection of papaverine

At a hospital where the police routinely sought the opinion on potency, the doctor did not conduct any medical tests for potency determination if the accused admitted a “history of sexual activity or if he was married with children”. However, if the accused refused, then a number of neurological tests (such as penile doppler test) were conducted, along with psychiatric evaluation.188

At another hospital, the accused was referred to the surgery department for intra-cavernosal injection of papaverine.189 Papaverine is a “smooth muscle relaxant” which is used for differentiating “neurogenic and psychogenic” causes of erectile dysfunction.190 It is also used a drug for management of psychogenic impotence.191

After Selvi, intrusions into mental processes of an accused, as in a narcoanalysis facilitated by injection of hypnotic drugs, require consent.192 Scientific studies explain that penile erection results from relaxation of cavernous smooth muscle, increase in blood flow to penis and

Kumar, supra note 177, at 189 (Stating that such measurements should be avoided as they are not indicative of erectile dysfunction in the person). 186 Fieldnotes from Pune, at H; Fieldnotes from Delhi, at H1, H2; Fieldnotes from Bangalore, at H. 187 Fieldnotes from Patna, at H. 188 Fieldnotes from Pune, at H. 189 Fieldnotes from Delhi, at H3. 190 Kumar, supra note 177, at 193 (“A quick rigid erection following injection of papaverine or in combination with manual or visual sexual stimuli will suggest ED as psychogenic, neurogenic or vasculogenic”). 191 CONTEMPORARY TREATMENT OF ERECTILE DYSFUNCTION: A CLINICAL GUIDE, 107 (Kevin T. McVary ed., 2011) (“Papaverine was the first agent discovered to be effective as intra-cavernous pharmacotherapy for erectile dysfunction”. It efficacy and side effects are said to be dose dependent); C.B. Dhabuwala et al, Intracavernous Papaverine in the Management of Psychogenic Impotence, 24 (2) ARCH ANDROL 185 (1990) available at https://www.ncbi.nlm.nih.gov/pubmed/2327828 (Last visited on 10 June 2018) (“papaverine appears to break the performance anxiety erectile failure cycle”); J.C. Abber et al, Diagnostic Tests for Impotence: A Comparison of Papaverine Injection with Penile Brachial Index and Noctural Penile Tumescence Monitoring, 135 (5) JOURNAL OF UROLOGY 923 (1986), available at https://www.sciencedirect.com/science/article/pii/S0022534717459246?via%3Dihub (Last visited on 10 June 2018) (“A poor response to papaverine injection documents organic impotence”). 192 Selvi, (2010) 3 SCC (Cri) 1, ¶¶ 224-225. 27

Unpublished working draft Not for circulation

restriction in outflow.193 All these events are controlled by stimuli (visual, olfactory, or imaginative) within the central nervous system and on touch stimuli on penis. Drugs such as papaverine cause the relaxation of these smooth muscles to invoke an erection. As an evidence of ‘potency’, such involuntary erection facilitated through injection of a drug would amount to a ‘psychogenic response’ requiring consent as per Selvi.194

Moreover, fairness of trial may also be in question if the Court fails to appreciate that non- responsiveness of accused does not imply erectile dysfunction or impotency, as it is a “version of the mind”.195 As stated, the examinations conducted as part of the potency test depend on the facilities available at a hospital. Thus, the accused are often referred to multiple facilities for such examination. In one instance, first the accused was examined at the emergency department, second at the forensic department for test of genital reflexes, and lastly (if required) referred to the urology department at other hospitals for neurological tests.196

In 2014, a fast-track court in Delhi criticized the examining doctor for conducting only routine anatomical assessment of genitalia and observation of cremasteric reflexes to affirm the potency of a 90 year old man. In the cross-examination the doctor admitted that referrals to other departments needed for a detailed assessment of erectile dysfunction had not been made.197 Holding that the prosecution’s evidence was “grossly insufficient”198 to prove that the person was impotent, the Court also noted that it had not come across any case where all the standard (neurological) tests had been conducted.199 The Court, however, relied on unquoted internet sources200 to emphasize the need for a comprehensive assessment of the requisite bodily and mental state for normal erectile function whenever the accused alleges impotency. Regretfully the pervasiveness of rape myths is such that these observations were based on the “general impression” that after attaining the age of 70, an accused would be “incapable of

193 Supra note 190. See also William Steers, Pharmacologic Treatment of Erectile Dysfunction, 4 (Supp 3) REVIEWS IN UROLOGY, S17-S25 available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1476024/ (Last visited on 10 June 2018). 194 Selvi, (2010) 3 SCC (Cri) 1. 195 Kumar, supra note 177, at 193. See Fieldnotes from Lucknow, at H2; Fieldnotes from Bangalore, at H; Fieldnotes from Pune, at H. 196 Fieldnotes from Lucknow, at H2. See generally State v. Sonu, SC 28907/16 (Delhi District Courts, Tis Hazari), State v. Arvind, SC No. 103/15 (Delhi District Courts, Rohini), State v. Mukesh, SC 440313/16 (Delhi District Courts, Dwarka). 197 State v. Jai Bhagwan Pandla, SC 64 /14 (2014) (Delhi District Court, Dwarka), at ¶ 14. (“Jai Bhagwan”). 198 Jai Bhagwan, SC 64 /14 (2014), ¶ 28. 199 Jai Bhagwan, SC 64 /14 (2014), ¶ 30. 200 Possibly, http://goaskalice.columbia.edu/answered-questions/mens-sex-drive-and-age (A website supported by Columbia University’s health promotion specialists, health care providers, and other health professionals for health related queries) (Last visited on 12 June 2018). 28

Unpublished working draft Not for circulation

committing forcible sexual intercourse”. The Court opined that although the accused’s sexual urges may still exist, he “may be able to perform consensual sexual act for a brief period”.201

A team doctors, involved in the deliberations on standard tests “Potency is done in all cases. for potency determination,202 recommends that the tests should A man with erectile dysfunction cannot commit only be conducted where the alleged offence is under Sec. ‘rape’ but may commit ‘sexual assault’” 375(a) of the IPC, and the accused alleges impotency. A potency determination is relevant only where the crime history indicates complete penile penetration with an erect penis and the accused alleges erectile dysfunction. Further, even when a determination is sought in such cases, the fairness of trial would necessitate deployment of the available “modern and scientific techniques”.203

However, a participant doctor informed that the police routinely requisitioned for the potency test or even in cases of digital penetration. From the point view of police, “a smart investigating officer” would always get the potency test done to avoid any “risk of impotency defense” in the future.204

Doctors who admitted that the test was irrelevant, often felt compelled to given an opinion if a specific query on ‘potency’ was raised by the police. While Sec. 53A of Cr.P.C. does not mention potency examination nor does Sec. 375 of IPC insist on penetration by ‘erect penis’, complete penetration or ejaculation, a participant doctor said that “[doctors] are not the lawmakers, it is not for us to change the law”.205

It is crucial to note that 2014 Guidelines recommend that a doctor should never entertain questions like whether the person is capable of sexual intercourse, but should instead explain the medical evidence and its limitation.206

201 Jai Bhagwan, SC 64 /14 (2014), ¶ 37. 202 Fieldnotes from Delhi, at H1 (I was informed that these followed after the decision of Delhi District Court in Jai Bhagwan, where the Court drew the attention of Department of Health on the non-standardization of potency tests). 203 Explanation (a) to Sec. 53, Code of Criminal Procedure, 1973. 204 Fieldnotes from Delhi, at PS1, PS2. See generally State v. Deepak, SC 53642/16 (Delhi District Courts, Rohini) (Potency test was conducted when the victim held from the beginning that she had married that accused at will, accused had not alleged impotence and victim was pregnant with their child); State v. Pramod, SC 9286/2016 (Delhi District Courts, Patiala House) (Accused did not claim impotency and admitted consensual sexual intercourse with the victim after their engagement). 205 But see Jagadeesh N., supra note 17, at 39 (Stating that Sec. 53A, Code of Criminal Procedure, 1973 does not mention potency test). 206 2014 Guidelines, supra note 13, at 41 29

Unpublished working draft Not for circulation

IV. COLLECTION OF SEMEN SAMPLES

Previous studies indicate that semen sample of the rape accused is often collected for the purpose of blood grouping,207 confirmation of spermatozoa, or for ascertaining the ‘capability’ or ‘potency’ of the accused.208

In certain instances, the doctors confirmed that semen samples “Rape is done by one were obtained from the accused on either police request209 or as person but allegation is on another person…semen part of routine in cases of gang rape. The samples were used to sample helps in finding the match the samples obtained from the victim (using swabs) with real accused” the accused, or for “DNA matching” to point to a particular accused in case of gang rape or when women “falsely accuse[d] or ha[d] been in relationships with multiple partners”.210

Although agreeing that blood sample or buccal swab would suffice for such DNA analysis, the participant doctors emphasized on the ‘routineness’ of this exercise.211

However, the doctors did acknowledge the difficulty in “Sometimes the police asks for obtaining the semen sample. In one of the hospitals following semen sample. It’s very difficult. You can’t get it like that. You the Proforma for Victims for accused’s examination, a modified can’t put a syringe”. entry in the form (as was identified subsequently) possibly led the doctors to collect the sample.212 A participant doctor, at this hospital, had mentioned that

207 Khandekar, supra note 21, at 200-201. See Deepak Rai v. State (GNCT of Delhi), MANU/DE/1612/2016, ¶17 (Delhi High Court). 208 Ashok v. State of Maharashtra, MANU/MH/1969/2017 (Bombay High Court) (The examination of the accused took place in 2005. The examining doctor noted that it was not possible to give an opinion on whether he was capable or not for committing sexual intercourse); Vipin Yadav v. State of NCT of Delhi, MANU/DE/5056/2016 (Delhi High Court) (The accused was examined in 2012. The examining doctor on physical examination stated that the accused, 19 years old, was capable of sexual intercourse and also noted that “patient could not ejaculate in the casualty dressing room” and hence semen was not taken. After noting the loopholes in the victim’s testimony, the Court referred to the doctor’s statement to conclude that “appellant obviously has erectile dysfunctionality”); Jayeshbhai Khemchandbhai Patel v. State of Gujrat, MANU/GJ/0405/2017 (The accused was 65 years old and he had failed to “produce semen” in-spite of masturbating three times and was sent to another hospital where tests were performed on him during which semen sample was collected. The defence while requesting for information to be released on the nature of tests, amount of semen collected and documentation before the trial, had argued that the prosecution was trying to establish that the accused was potent, where the accused was “not able to produce or ejaculate semen” due to his old age. Semen stains were found on the clothes of the victim and they matched with the blood group of the accused. The order also mentions DNA testing of the sample at forensic science laboratory). 209 Fieldnotes from Delhi, at H2, H3; Fieldnotes from Patna, at H. 210 Fieldnotes from Lucknow, at PS2, PS3, H2; Fieldnotes from Delhi, at PS1. 211 See 2014 Guidelines, supra note 12, at 73; Fieldnotes from Delhi, at H2, H3. 212 Fieldnotes from Lucknow, at H4. At the hospital, I was informed that Proforma for Victims was in use for the medical examination of the accused. Later, during the review of the case files, I found that in the medico-legal 30

Unpublished working draft Not for circulation

although the accused were given a private room and about 15-20 minutes to masturbate, in almost 90% of the cases, they were not able to obtain the sample. A previous study notes instances of referrals to other hospitals on account of the accused’s failure to ejaculate.213

‘Examination’ as defined in the Cr.P.C., includes examination of semen.214 Even prior to the introduction of this explanation, the High Courts had opined that irrespective of the “discomfort or pain” caused in obtaining semen samples from the accused, it was justified under Sec. 53 of Cr.P.C. 215

From the point of view of investigation, semen sample is obtained for comparison with the semen stains found on the victim’s person or articles. The scientific rationale is that if a semen stain has been identified, the blood group of ‘donor’ can be known if the person belongs to the 80% of the population who “define (secrete) blood group” in body fluids, by analysis of chemical substances.216 However, if both victim and the accused are of the same blood group then this may not be useful. In any case, DNA analysis may still be required for linking the victim’s evidence with the accused.217

Given the questionable scientific reliability, forcing an accused to undergo an unnecessary and invasive procedure to obtain a sample, when “modern and scientific techniques” 218 such as DNA technology exist infringes his right to privacy, bodily integrity and dignity. A participant doctor termed the practice of obtaining semen sample, to either prove potency or link the accused with the offence, as ‘dehumanising’ as well as ‘irrelevant’ as blood samples suffice for the purpose of blood-grouping or DNA analysis.219

form of this hospital, the entry stating ‘vaginal smears (air dried) for semen examination (as appearing in the Proforma for Victims) was modified to ‘two smears (air dried) for semen examination’. Although a clarification on this modified entry could not be obtained, it appears that it was the reason why the doctors were insisting on collection of semen samples from the accused as part of the routine process. 213 See Khandekar, supra note 21, at 202 (The author also lists the hospitals where the semen samples were being collected. Two of those hospitals were visited during this study and the doctors confirmed that semen samples were collected on a request by the police). See Baxi, supra note 11, at 99 (Noting ‘funny referrals’ to psychiatry department for the purpose of collection of semen samples). 214 Explanation to Sec. 53, Code of Criminal Procedure, 1973. 215 See for instance, Ananth Kumar Naik v. State of Andhra Pradesh, 1977 Cr. L.J. 1797 (Andhra Pradesh High Court). 216 PRACTICAL ASPECTS OF RAPE INVESTIGATION: A MULTIDISCIPLINARY APPROACH (Robert R. Hazelwood et al. ed., 4th edn. 2009); U.K. Kulkarni et al, Relevance of Semen Sample in Sexual Assault Investigation, 4 (8) WORLD JOURNAL OF PHARMACY AND PHARMACEUTICAL SCIENCES 1608 (2015) (Blood group determination through semen sample was found to be the least conclusive). 217 Jagadeesh N., supra note 93, at 98 (Stating that unless a DNA analysis is done, a match with the accused cannot be determined). 218 Explanation (a) to Sec. 53, Code of Criminal Procedure, 1973. 219 Fieldnotes from Pune, at H. See Biswas, supra note 154 at 385. 31

Unpublished working draft Not for circulation

V. (IN)CAPABILITY APPROACH TO FORMULATING MEDICAL OPINION

According to Sec. 53A(3) of Cr.P.C., the report of the examining doctor should precisely state the reasons for each conclusion. While a few participant doctors restricted their opinion to the injuries seen and the samples collected,220 a majority of them also opined on the ‘capability of the accused to perform sexual intercourse’.221

In the review of the case files in Delhi, all but one of the medico-legal certificates issued by a hospital were titled as ‘Medical Examination and Potency Test Report’. A participant doctor from this hospital clarified this was because the police requisitions required an opinion on potency. The medico-legal certificates were identically worded and included findings on development of external genitalia. They ended with an opinion stating “there is nothing found to suggest that above mentioned person is incapable of performing sexual intercourse under ordinary circumstances” (emphasis added).

The doctor informed that “[this] is a convention that is going on since Modi’s jurisprudence times”. She further explained that since a conclusive opinion on potency of the accused cannot be given, it is drafted in a ‘double negative’ with emphasis on ‘ordinary circumstances’.222 If a direct opinion is given the accused could argue that he is impotent to a ‘particular person or personal circumstance.223

A sample format for drafting the medical opinion shared at another hospital recorded findings on evidence of recent sexual intercourse, as well as whether such intercourse was ‘consensual’ or non-consensual’.224

220 Fieldnotes from Lucknow, at H2 and H3 (The MLCs contained in the case files and court records only recorded injuries on the body of the accused); Fieldnotes from Dehradun, H2 and H3 (However, MLCs of H2 contained findings on genital abnormalities). 221 Fieldnotes from Delhi, at H1, H3; Fieldnotes from Dehradun, at H1; Fieldnotes from Patna, at H; Fieldnotes from Bengaluru, at H (In Patna and Bengaluru, the opinion included a comment on evidence of recent sexual act and potency. One out of the three participant doctors in Dehradun recorded his opinion on capability of the accused to enter into sexual intercourse). 222 Fieldnotes from Delhi, at H1, Advocate. See also Fieldnotes from Pune, at H (Responses to the query on potency were phrased in “double negative”). 223 Id. 224 Fieldnotes from Lucknow, at H1. See also Aggarwal, supra note 154, at 356-358 (2016). 32

Unpublished working draft Not for circulation

CONCLUSION The aim of this study was to understand the practices in medical examination of the accused, and evaluate its characteristic elements on the balance of twin public interests225 in: efficient investigation of rape and protection of constitutional rights of the accused. While a common thread of ‘reasonableness’ runs through the constitutional and legislative framework on such examination, its practices are grounded in unreasoned ‘routine’, unfazed by the amendments in the law. Fuelled by a perceived threat of the law, diligent compliance of the routine undermines (albeit to varying degrees) both the investigation and the accused’s rights, making any attempt at assessing the ‘balance’ premature.

The findings underscore the necessity to standardize the protocols of the medical examination, evidence collection, and formulation of medical opinion. Further, it is crucial to ensure that the crime history and other information for medical examination is effectively communicated by the police through effective channels to the examining doctor so that irrelevant examination and sample collection is avoided. While the 2014 Guidelines have reoriented the focus of the victim’s examination on the nature of the alleged offence, crime history and scientific methods of evidence collection, the same is necessary in case of the accused examination not only to prevent loss of useful corroborative evidence but also to ensure the constitutional rights of the accused in the context of involuntary medical examination.

As laid down in Oghad, Selvi, and Puttaswamy, intrusions into the physical privacy should satisfy the requirements of necessity and proportionality, whereas intrusions into his mental privacy cannot be without consent. The accused cannot be subjected to cruel, inhuman or degrading treatment during the medical examination.226 Further, the right to fair trial, of both the accused and the victim, is linked to the scientific reliability of the evidence obtained.

Dr. Jagadeesh N. insists the elements of consent and care should be introduced in the medical examination. He argues that ethically, a doctor should always obtain an informed consent of the accused for each stage of medical examination, explaining him the repercussions of his

225 Jack Tsen-Ta Lee, Medical Investigations of Suspects by the Police, 17 SINGAPORE LAW REVIEW 51, 54 (1996) (Arguing that the two interests in efficient investigation and rights of accused should be both regarded as public interests rather than treating the latter as a matter of ‘individual right’ which ought to be balanced with societal needs). 226 Accidental observations of medical examination of the accused at two instances during the study revealed lack of privacy, and in one instance degrading and humiliating treatment to the accused. See K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1; Lee, supra note 224 (Emphasising on ensuring reasonable privacy and minimum discomfort to the accused). 33

Unpublished working draft Not for circulation

refusal during trial and the permission under law for use of reasonably necessary force.227 While consent of the accused is immaterial for examination, at a minimum he should be informed of the nature of the procedures to be carried on his body. Interestingly, during the study, accused’s consent to medical examination was often taken in writing, however, it was merely a ‘tick-box’ exercise, without relaying adequate information to the accused to make an informed decision. As one of the doctors said, “the fact that he has come for examination, means that he consents”.

Lastly, suitable amendments are required in the medical jurisprudence textbooks which reduce the medical examination of accused to determination of his “capability of the accused to perform sexual intercourse”. In the absence of such claim by the accused, it is apparent that anxieties concerning false allegations of rape underlie the “convention”, which is perceived as the ‘law’.228

227 Jagadeesh N., supra note 17, at 38. 228 Fieldnotes from Delhi, at H1. Supra note 204. 34