Supreme Court calls for Ban on Two-Finger Test

Two finger test also know as virginity test[1], this test involves a medical practitioner inserting two fingers into the vagina of a rape survivor in an attempt to determine if the hymen is broken or not?

The purpose of this test is to determine that victim is a “habituated to sex”. The medical report of the rape survivor is used to cast a doubt on rape allegation which victim imposed a allegation of rape on accused, the medical report of victim is very crucel document because it can determine the victim is regularly active or not, if victim is regularly active in sex then it can assume that rape wasn’t harmful to the survivor,  instead it can lead to doubt on characterless or moral impropriety of the survivor, therefore her lack of right to justice.

In 2012 The 2012 Delhi gang rape and murder, commonly known as the Nirbhaya case, involved a rape and assault that occurred on 16 December 2012.The incident took place when Jyoti Singh, a 22-year-old, was beaten, gang raped  and tortured in a private bus in which she was travelling with her male friend, Awindra Pratap Pandey. There were six others in the bus, including the driver, all of whom raped the woman and beat her friend. She was rushed to Safdarjung Hospital in Delhi for treatment and transferred to Singapore eleven days after the assault, where she died.

After this case the ministry of home affairs has laid down the several guidelines on july 25th, 2017 related for medicial petitioner who handle the sensitive cases like rape cases and sexual harassment cases.

However these guidelines do not follow all over the India, nor have they been enforced and whenever there is a breach of these guidelines are not underpinned by legal sanctions.

What is two finger test?

The two finger test is a test which is conducted by the doctors to determine whether the women is raped or not. It says that doctor inserting two fingers in a victim’s vagina to determine the laxity and decide if the victim is habituated to sex, the doctor assume that her hymen can only be torn if there has been a sexual intercourse.[2]

The Guidelines and protocols for Medico-legal care for survivors/victims of sexual violence

The Ministry Of Health and Family Welfare, Government of India issued certain  The Guidelines provided that[3]:

  • The Per-Vaginum examination commonly known as the “two-finger test” should not be conducted.
  • The size of the vaginal introitus has no bearing on the case of a sexual violence and the pre vaginum examination can be done only on adult women when medically indicated.
  • The guidelines also provide that the status of the hymen is irrelevant as it can also be torn due to other things such as cycling, riding among other things. An intact hymen does no rue out the sexual violence and the torn hymen also does not prove sexual intercourse.
  • Hymen should be treated like any other part of the genitals while documenting examination findings in sexual violence cases.
  • In the case of assault, only relevant findings such as fresh tears, bleedings, edema etc are to be documented.
  • The guidelines directed that in cases of sexual violence more focus should be on the testimonies of the victim and the witness rather than the physical examination to check for injuries to the genital area.

Is two finger test is still continues?

Yes, the two finger test is stil continues after supreme court declared this test is unconstitutional in 2013 because it started that this test infringes the Article 21[4] of right to privacy and its violates the  right of rape survivor to privacy, physical, mental and dignity.

In the case of lillu vs. State of Haryana[5], The Supreme Court analysed the medical and legal procedures commonly adopted in the case of rape survivors. The appeallant was convicted for rape in Lower Court and High Court of Punjab and Haryana this appeal on the basis of the testimony of a medical examiner who stated that there was a possibility of the rape victim being habituated to sexual intercourse after conducting the ‘two finger test’. The court observed that ‘the two finger test is violating the fundamental right of a women which is right to privacy dignity’. Moreover court says that a positive result doesn’t give rise to the presumption of consent by itself and in this case the victim is minor when the act is happened. And, Even if a person was habituated to sexual intercourse, it could not be a determinative question in assessing evidence for a rape conviction, as such a person would still be entitled to refuse consent. Consent is a primary essential in the cases of rape, if someone say no to sexual intercourse then you should stop doing so!!!

In march 2014, India’s ministry of health issued some guidelines for the care of survivor victims of sexual violence. However, the guidelines is not universally adopted in India, neither it enforces nor its reported by anyone, if any violation of these guidelines.

There are some doctors in India who is still using two finger test on rape survivor despite its banned in India in 2013.[6]

  •  A social development society, Jan Sahas, studied the records of 200 group rape trials and found that the two fingers test was used on 80% to determine rape.
  • A micro survey was conducted in Lucknow where it was found that out of 10 rape, including 5 minors, all of them had to go through the two fingers test.
  • In 2016-17 the outdated test was conducted in almost 179 rape cases involving children in Chennai.
  • Last year Human Rights Watch released a report according to which rape victims in Rajasthan hospital had little access to support services and the doctors there were still performing the two fingers test.
  • In Madhya Pradesh, a girl was raped by her father, after reporting the rape the doctor noted that she was likely pregnant but they still conducted the two-finger test. The test was completely contrary to the guidelines which were adopted by the Madhya Pradesh guidelines.

Is two finger test amount to rape?

Two finger test means a medical practitioner inserting two fingers into the vagina of a rape survivor in an attempt to determine if the hymen is broken or not?

In another word, Doctor inserting two fingers in a victim’s vagina to determine the laxity and decide if the victim is habituated to sex, the doctor assume that her hymen can only be torn if there has been a sexual intercourse.

In section 375 ‘rape” is defined[7] : A man is said to commit “rape” if he–

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,

When an medical examination of rape victim is in process and if the victim denies for the test and doctor is still doing it the two finger test for testify that victim hymen is broken or not then the victim can file an FIR, charging him under section 375(b) of Indian Penal Code 1860, which states that insertion of any object or any part of the body apart from the penis, without the consent or against the will of the person amounts to the offence of rape, Toward the doctor who is conducting the test, after victim denies for the test.

Therefore the two finger test is amount to rape under section 375(B) of India Penal Code 1860.

Supreme court banned on two finger test

On 31st October 2022 Supreme Court give judgment in the case of state of Jharkhand vs. shailendra kumar rai[8], that two finger test is still continues in India, in fact it was declared unconstitutional in 2013.

Justice DY Chandrachud and Hima Kohli, observed while pronouncing the Judgment that “This court has time and again deprecated the use of two finger test in cases alleging rape and sexual assault. The so called test has no scientific basis. It instead re-victimizes and re-traumatises women. The two finger test must not be conducted…the test is based on a incorrect assumption that a sexually active women cannot be raped. Nothing can be further from the truth”[9]

Furthermore the bench directed to union health ministry to ensure that survivors of rape victims are not subject to two finger test, The bench also directed to union government as well as state government that the guidelines formulated by the department of health and family welfare are circulated to all government and private hospitals.

 It also said that workshops should be held for health providers to prevent the test from being conducted on rape survivors.

“Any person who conducts the two-finger test in sexual assault cases shall be guilty of misconduct,” the court ordered.

Conclusion

The two finger test has no scientific basis instead it re-victimizes and re-traumatises women, this test violates the right of privacy and dignity and Even if a person was habituated to sexual intercourse, it could not be a determinative question in assessing evidence for a rape conviction, as such a person would still be entitled to refuse consent. Such test should banned from our country, in many countries this test is not allowed, in fact U.S.A and U.K like countries is using alternate method to collect the DNA report of a victim of a rape survivor. This test violates many fundamental rights and the only purpose of this test is check whether the victim is “habituated to sex”. We should have a comfortable environment and have a mental health doctors who knows how to talk to victims, especially they should have a female doctor, they should support and make them comfortable who survive the rape, so that they can speak clearly without any hesitation or fear to investigation officer and tell them the truth.    


[1] Shraddha patidar and shweta, Two Finger Test While Examining a Victim of Sexual Offence, blog.ipleader (25th Jan. 2023, 5:30 PM), www.blog.ipleader.in

[2] Equalitynow, www.equalitynow.org, (23rd Jan. 2023)

[3]  Shraddha patidar and shweta, Two Finger Test While Examining a Victim of Sexual Offence, blog.ipleader (25th Jan. 2023, 5:30 PM), www.blog.ipleader.in

[4] India Const. art. 21.

[5] Lillu v. state of Haryana, (2013) 2 SCR 774, (2013) 14 SCC 643

[6] Shraddha patidar and shweta, Two Finger Test While Examining a Victim of Sexual Offence, blog.ipleader (25th Jan. 2023, 5:30 PM), www.blog.ipleader.in

[7] Indiacode, www.indiacode.nic.in, (25th Jan 2023)

[8] State of Jharkhand v. shailendra kumar rai, CrA 1441 of 2022 SC 890.

[9] Sohini chowdhury, supreme court bans two finger test, livelaw (25th Jan 2023, 4:30 PM), www.livelaw.in


Author: Ritik Yadav


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