Nitiriti Bureau
New Delhi, Oct 31.
The Supreme Court on Monday lamented the use of the two-finger test in rape cases, decades after it had outlawed it, and said that it would now treat the use of the test as a “misconduct”.
The test is carried out by the medical fraternity to establish whether a woman, who claimed to have been raped, was sexually active or not.
Whether a woman is “habituated to sexual intercourse” is irrelevant for the purposes of determining whether the ingredients of Section 375, IPC, or rape, are made out, a bench, led by next in line to be Chief Justice of India Dr D.Y. Chandrachud said.
Any person who conducts the “two-finger test” or per vaginum examination (while examining a person alleged to have been subjected to a sexual assault) in contravention of this court’s directions shall be guilty of misconduct, it said.
The so-called test is based on the incorrect assumption that a sexually active woman cannot be raped, the bench said.
Nothing could be further from the truth – a woman’s sexual history is wholly immaterial while adjudicating whether the accused raped her. Further, the probative value of a woman’s testimony does not depend upon her sexual history.
It is patriarchal and sexist to suggest that a woman cannot be believed when she states that she was raped, merely for the reason that she is sexually active, the bench, which also included Justice Hima Kohli, said.
The legislature explicitly recognized this fact when it enacted the Criminal Law (Amendment) Act 2013 which amended the Evidence Act to insert Section 53A.
In terms of Section 53A, evidence of a victim’s character or of her previous sexual experience with any person shall not be relevant to the issue of consent or the quality of consent, in prosecutions of sexual offences, the bench noted.
The court said this while setting aside a High Court order acquitting a rape accused in a case. He had burnt the victim after raping her. She had deposed against him in her dying declaration.
The Medical Board had conducted the “two-finger test” on her 10 years ago to determine whether she was habituated to sexual intercourse.
The court said that it had time and again deprecated the use of this regressive and invasive test in cases alleging rape and sexual assault. This test has no scientific basis and neither proves nor disproves allegations of rape.
It instead re-victimizes and re-traumatizes women who may have been sexually assaulted, and is an affront to their dignity. The “two-finger test” or pre vaginum test must not be conducted.
“… rape survivors are entitled to legal recourse that does not retraumatise them or violate their physical or mental integrity and dignity. They are also entitled to medical procedures conducted in a manner that respects their right to consent.
“Medical procedures should not be carried out in a manner that constitutes cruel, inhuman, or degrading treatment and health should be of paramount consideration while dealing with gender-based violence.”
“The state is under an obligation to make such services available to survivors of sexual violence. Proper measures should be taken to ensure their safety and there should be no arbitrary or unlawful interference with their privacy.
Thus, undoubtedly, the two-finger test and its interpretation, violates the right of rape survivors to privacy, physical and mental integrity and dignity, it said citing an earlier 2013 ruling.
The bench instead asked the Union and State governments to ensure that the guidelines formulated by the Ministry of Health and Family Welfare are circulated to all hospitals and workshops are conducted for health providers to communicate the appropriate procedure to be adopted while examining survivors of sexual assault and rape.
It sought a review in the curriculum in medical schools with a view to ensuring that the “two-finger test” or per vaginum examination is not prescribed as one of the procedures to be adopted.
The Principal Secretaries in the Health Departments of each state shall also be responsible for ensuring the implementation of the directions. The Secretaries in the Departments of Home of each state shall in addition issue directions to the DGPs. The DGPs, in turn, will communicate these directions to the Superintendents of Police.
