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An estimated 11-minute read
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Supreme Court Advocate K.V.Dhananjay points to a criminal procedural provision that has horribly gone wrong in India. Section 53-A of the Criminal Procedure Code, 1973 allows the police to use reasonable force to subject a person accused of rape to a medical examination. The scope of such a medical examination extends to collection of blood, semen and other body fluids or particles of the accused. A rape accused that is unwilling to provide his semen runs the real risk of being forcibly masturbated by the police. Dhananjay cites the ongoing case of a religious seer in Karnataka who refuses to give his semen to the police – only to be threatened of masturbation by the police!

Two things. Or, three things. A good number of our lawmakers do not know about what they put in their statutes. A good number of our policemen know nothing about what our lawmakers want them to do. And, a good number of our judges – across the courts – know very little of how to interpret a penal provision in cases where the public or the media is baying for the blood of the accused.

Section 53-A of the Criminal Procedure Code, 1973 makes for an interesting reading. It allows the police to conduct a forcible medical examination of a person accused of rape. Of course, a ‘medical practitioner’ is the one who would conduct such a medical examination and for our analysis, let us treat him as an agent and extension of the police and therefore, call him as the ‘police’ itself. This provision says:

153 A. Examination of person accused of rape by medical practitioner. – (1) When a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of this person will afford evidence as to the commission of such offence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place where the offence has been committed by any other registered medical practitioner, acting at the request of a police officer not below the rank of a sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the arrested person and to use such force as is reasonably necessary for that purpose.

Now, what really is the meaning of the term ‘medical examination’ in the aforesaid provision? You should read the ‘Explanation’ to Section 53 for that. It says:

Explanation. – In this section and in sections 53A and 54,-
(a) “examination” shall include the 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;

So, you just read in the aforesaid provisions that the police could ask for the semen of a rape accused. Apparently, if the accused would refuse to provide his semen and the police is in real need of it, they could then use reasonable force to subdue the accused and obtain his semen by force. That is, the police is empowered to masturbate that accused person to obtain his semen. Of course, this is how the police understand it across the country. And, I too am assuming that there isn’t any other known or efficacious method of extracting the semen of an unwilling accused. Period.

Over the centuries, we have evolved diverse rules for interpreting a statute. An interpretation that would run afoul of the Constitution is to be deferred in favour of an interpretation that is consistent with the Constitution. I am not going to spend much time here analyzing the various rules of statutory interpretation but I would readily say that:

Why would the police want the semen of a rape accused in the first place? Certainly, the naked eye would not be able to match the semen stain on the evidence to the semen drawn from the accused. That is, in case you did not know – the colour of semen of different men is almost the same. So, the only objective of wanting the semen of a rape accused would be to match the DNA therein to the DNA contained in semen stain on the evidence;

But then, blood is considered as the equivalent of semen for forensic purposes across the world – except, of course, in India. In this regard, it is worthwhile to recount an interesting episode I came across on TV last week – a ‘For Profit’ University in the United States is being sued by a student who could not get any job after graduating from that place despite shelling out a fortune in fees. One of the grounds of complaint is that his teacher in dental sciences in that University was not at all licensed in that State. The lawyers for the plaintiff do a terrific job of arguing that an unlicensed professional and therefore, an incompetent person was put in charge of teaching a critical subject to the students at that University. Then comes the defense attorney. His first question to the teacher is – ‘which other State are you licensed from?’ After obtaining a positive answer to it, his next and the last question is – ‘Dear teacher, does dental anatomy change in a person when he crosses a State border?’ A hilarious ‘no’ comes the answer. The takeaway from this entertainment is that – medical science doesn’t change to any extent so as to not consider blood as the equivalent of semen for forensic purposes when one crosses national borders. By the way, in that TV show, the defendant won the case.

In any modern society, it is simply inconceivable that a lawmaker who has ever been in his right mind or who wants to be thought of as being in his right mind would allow the police to forcibly masturbate a rape accused in order to get to his semen. Period.

Section 53-A therefore, is to be interpreted by a constitutional court in a manner so as to prevent the police from forcibly masturbating an unwilling rape accused – in order to prevent it from becoming unconstitutional in part. There cannot be any persuasive argument against this proposition. Period.

Roughly two or three weeks ago, I received a call on a rainy evening. The caller was a senior counsel and a friend. He said:

“Dhananjay, what is wrong with you? Do you know how much damage you are doing to things around you? Last night you were on TV and telling to that rape accused (Godman) to not provide his semen if he did not want to. This morning he was supposed to show up at the police station to provide his semen. Emboldened by what you said, he didn’t show up and the police is terribly upset and frustrated that they cannot bring a guilty man to book. You said on TV to that rape accused, ‘look, if you are unwilling to provide your semen to the police as you have already provided your blood to them, then, do not provide your semen and you do not have to worry about violating any law; the provision in this case is bad because if it is interpreted in such a way as to let the police forcibly masturbate a rape accused, it would be unconstitutional and should be declared to be of no effect. If the High Court judge or the Supreme Court judge who would hear your case would know much about the Constitution, he will and he should excuse you from giving your semen to the police simply out of a fear of a forced masturbation from the police’.”

“You are making us lawyers and our judges look like idiots on TV. You are not the only constitutional lawyer in town. And, Karnataka is not the only State in India. Do you see anybody else making noise about Section 53-A? Nobody is. Do you know why? Because it is a non-issue. Rape accused routinely provide their semen sample to the police and only an arrogant lawyer like you would go on TV to say that they need not do so out of fear of being forcibly masturbated by the police. You might not feel hesitant to talk about such things on TV but we and our judges are very hesitant to use that word in our courtrooms. Our courtrooms are places for dignified talk. It is only because of you that an issue that is absolutely rubbish is being repeatedly debated only in the media in Karnataka and nowhere else in India. You are emboldening the rape accused and misdirecting them. Please stop it. So many people are beginning to ask defence counsel if they don’t know the law quite well because you make those hardworking lawyers look like fools by your talk on TV. Stop it. Don’t talk about Section 53-A again. Please.”

Well, here I am – talking about Section 53-A again.

By the way, that Godman runs this other risk as well should the police forcibly masturbate him – he was or is a highly respected Shankaracharya order seer based in Karnataka and was or is still known nationally. Let alone approve of masturbation, the scriptural rules by which he is governed does not even allow him the indulgence of staring at any woman. He has been accused and charged with raping his devotee – his devotee was allegedly told to imagine herself that she is voluntarily serving a God incarnate and to please him sexually in return for enlightenment; she allegedly did as instructed. He has publicly denied all of the charges against him. And, several Hindu religious scholars have now called for his resignation should he be forcibly masturbated by the police and his semen is drawn thereby. In the event of a forced masturbation by the police, the seer would be thought to have incurred a sin that may not be redeemed at all in the foreseeable future – that is, in the next 60000 years as per the Shastras! Or, so I heard from a couple of scholars that were on TV with me.

It is clear that there always will be some men who would not want to provide their semen to the police. And it is even clearer that those men would not ever want to be forcibly masturbated by the police. However, if the latter class of men should suffer a masturbation in the hands of the police despite knocking on the doors of a High Court or of the Supreme Court, I would have no hesitation is saying that the quality of thought of our High Court or the Supreme Court would leave too much to be desired – from a constitutional perspective – should they remain so blind to the horror of Section 53-A.

Of course, the scolding senior counsel had this other thing to say as well –

“Look, a constitutional court cannot hear the complaint of a person who is presumed to enjoy the thing that he complains of. The Evidence Act allows a judge to take note of matters of common knowledge. Masturbation is pleasurable and no judge in this country would be willing to hear a person complain against being forcibly masturbated by the police for the simple reason that there would be nothing to complain of if the accused would voluntarily masturbate in privacy in the first place – for the purpose of submitting his semen. Your grievance is a fairy tale – test it yourself in any court and you will know your fallacy.”

Finally, the answer to the first question – ‘Do you have a constitutional right to not be masturbated by the police?’ - is a resounding ‘yes’. You do have a constitutional right to not be forcibly masturbated by the police. Don’t believe any lawyer or any judge who would tell you otherwise – he knows nothing really of our Constitution.

And, if you haven’t already concluded that the last sermon by the scolding senior counsel is a product of perversion, do yourself a favour – do not handle any rape case - whether as a lawyer or a judge. If you do, you might end up with a grave mistake by raising a question to the victim as an advocate or you might overrule an objection as a judge to a question that might run something like the following in a non-violent case of rape:

‘Madam. You complain of rape by this accused. But, pray tell me, given the fact that there is no evidence at all of violence and not even an allegation to that effect, did you enjoy the sex while it lasted?’

You see, the same theory that sustains Section 53-A in the form that is practiced in India now should also support the aforesaid question in a rape trial. However, as you should know that you are not allowed to question a victim in a non-violent rape trial as in the above, you should also know that Section 53-A isn’t meant to be used the way this country is using it now. This country is on a wholly wrong foot on Section 53-A - legally, socially and morally.

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