Licence to Rape: Doctor's Rs 5,000 Fine for Assaulting Schoolgirl

Rs 5,000 and a Question of Rape: How a Sentence Undercut a Conviction

Three and a half years back, Simran Chhabra walked into a hospital along with her brother for a scratchy throat. She came back in a body bag. I have been representing her family for the past three years, and along the way I have also endured an attempt on my life. After enormous effort, the Magistrate summoned the accused doctor for causing death due to medical negligence, and that should have been the beginning of the trial. Instead, it became the beginning of another battle. The proceedings remained tied up in the High Court for almost two years. Eventually, the summoning order was set aside and the matter was sent back to the Magistrate, to start the process ab initio.

Also Read:Medical Negligence: Who Killed Simran?

Like Odysseus, thrown back from the shores of Ithaca when the winds rose from the bag of Aeolus, we were carried all the way back to the Magistrate, to begin again. Meanwhile, time passes and justice continues to elude the family.

Must the law protect the accused or the victims?

If the law protects the accused, then it protects every accused — or was this a special case? This was special, as the accused is a doctor and the law is overgenerous towards doctors.

Here is something more worrisome. Article 14 of our Constitution promises equality before the law. Why then do judgments keep creating the impression that a

Rs 5,000 and a Question of Rape: How a Sentence Undercut a Conviction

Three and a half years back, Simran Chhabra walked into a hospital along with her brother for a scratchy throat. She came back in a body bag. I have been representing her family for the past three years, and along the way I have also endured an attempt on my life. After enormous effort, the Magistrate summoned the accused doctor for causing death due to medical negligence, and that should have been the beginning of the trial. Instead, it became the beginning of another battle. The proceedings remained tied up in the High Court for almost two years. Eventually, the summoning order was set aside and the matter was sent back to the Magistrate, to start the process ab initio.

Also Read:  Medical Negligence: Who Killed Simran?

Like Odysseus, thrown back from the shores of Ithaca when the winds rose from the bag of Aeolus, we were carried all the way back to the Magistrate, to begin again. Meanwhile, time passes and justice continues to elude the family.

Must the law protect the accused or the victims?

If the law protects the accused, then it protects every accused — or was this a special case? This was special, as the accused is a doctor and the law is overgenerous towards doctors.

Here is something more worrisome. Article 14 of our Constitution promises equality before the law. Why then do judgments keep creating the impression that a separate, gentler law operates for those who wear a white coat?

When Assault Escapes the Law of Rape Meant to Deter It

Days ago, a seventy-one-year-old doctor was convicted for outraging the modesty of a schoolgirl. Seventeen years back, when she was still a minor, she had gone to his clinic complaining of irregular periods, accompanied by two friends. The doctor took her into his chamber for a check-up.

What happened inside that chamber, as recorded in the judgment of the trial court, was this. He unbuttoned her blouse and groped her breasts. She protested. He reassured her that such contact was not inappropriate. He was, after all, a doctor. He then removed her underwear and attempted to sexually assault her. She raised an alarm. Her friends rescued her.

Read that last line again. A schoolgirl had to be rescued by her friends from her doctor's chamber.

The court rejected the defence that this was part of a routine medical examination. It observed that a doctor examining a patient for irregular periods has no reason to grope her breasts, and that the victim's own consistent testimony was sufficient to establish the offence.

The trial court sentenced him to two years of simple imprisonment with a fine, in accordance with the law. He appealed and the High Court upheld the conviction.

Also Read:  Bardhaman Medical Negligence: "ROP Screening Could Have Saved My Child"

Why I Call This a Licence to Rape

But the sentence? It was reduced to a fine of Rs. 5,000. You read that right — five thousand rupees. I had to read the judgment many times to convince myself that I was reading it correctly. I kept asking myself whether I had missed something. I had not. To be fair to the Court, the reduction was not without legal basis. The incident took place before the Criminal Law Amendment of 2013. Under the unamended Section 354 IPC, a sentence of fine alone was permissible. The Court also took note of the convict's age of seventy-one years.

As a lawyer, I understand that reasoning.

But I also understand this. The law permitted a fine-only sentence, but it did not compel one. Imprisonment remained fully available. The choice to let a man convicted of groping a schoolgirl walk away with Rs. 5,000 was a choice. More importantly, Parliament was compelled to bring the 2013 amendment to the IPC only after the gruesome rape and murder of Nirbhaya. Hence, as a citizen, I have a different perspective too. Every sentence sends a message.

The message here is scary. If you are a doctor, the law appears willing to forgive what it would never forgive in an ordinary man. Why does it appear that when the accused wears a white coat, accountability becomes extraordinarily difficult? Why do victims leave court feeling that professional status has become an invisible defence? If anything, the position should be the reverse. Doctors are highly educated persons placed on a higher pedestal, and a greater duty is cast upon them to uphold the law and morality.

Justice is not judged only by legal principles. It is judged by the confidence it inspires. Today, I fear that confidence is disappearing. That is why I have titled this article "Licence to Rape." Not because any law grants such a licence. But because if judgments continue to create the impression that doctors can escape meaningful consequences for even the gravest offences, then the public will inevitably conclude that such a licence already exists.

And then I realised something.

The irony is almost impossible to ignore. Under the Electricity Act, if a doctor is found tampering with an electricity meter, or illegally using a domestic electricity connection for commercial purposes, a Junior Engineer of the electricity department has sweeping powers. The electricity supply can be disconnected. Assessments can be raised. Criminal proceedings may be initiated. Upon conviction, imprisonment may follow.

In practical terms, an allegation relating to electricity theft may expose a doctor to swifter and more immediate consequences than allegations involving the loss of a patient's life, or misconduct towards a woman.

That is a sobering reflection on our system of enforcement.

So, the next time someone loses a loved one because of alleged medical negligence, or a woman complains of criminal misconduct by a doctor, perhaps the most effective legal strategy is not to engage an advocate at all.

Instead, one might be better advised to inspect the doctor's electricity connection, or hire an electricity inspector and pay him to charge the doctor with tampering with the meter, even falsely. If the meter is found to be tampered with, or if the clinic is running on a domestic connection in violation of the law, the machinery of the State will spring into action with remarkable speed. The doctor may face disconnection of electricity, criminal prosecution, and the prospect of imprisonment. These are consequences that victims of far more serious offences often struggle for years to achieve through the criminal justice system.

Unfortunately, the facts that inspired this piece are not fictional.

Our legal system appears to respond more decisively to the theft of electricity than to allegations involving the loss of human life or violations of bodily dignity.

No civilised society should ever reach a point where the most effective route to accountability for a medical professional runs through the Electricity Act rather than through the criminal law meant to protect life and personal dignity.