The two-finger test or per vaginum examination is a medical examination used to determine the virginity of a woman. It has been used in Indian judicial systems since the late 19th century, but has long been criticised as outdated, unreliable, and invasive. The two-finger test involves a doctor inserting two fingers into the woman’s vagina to check the presence of the hymen and the size of the vaginal opening. The test is used to determine the presence of a hymen, which is believed to indicate virginity. If the hymen is intact, it is assumed that the woman is a virgin. The two-finger test has been used as evidence in rape cases in Indian courts since the late 19th century. In 1892, the Indian Evidence Act was amended to allow medical evidence in rape cases, and the two-finger test was part of that evidence. A rape survivor’s past sexual history used to be permissible evidence under Section 155(4) of the Indian Evidence Act.[1]
Moreover, the accused can claim that there was consent of the victim to the sexual acts performed due to her immoral character. This was despite the fact that the test was unreliable and had no scientific basis. Since then, the two-finger test has been used in rape cases in India. The test is seen as a way to prove that the woman was not a virgin at the time of the alleged rape. This is despite the fact that lack of virginity is not proof of sexual assault. This section was later removed on the basis of the recommendations in the 172nd Law Commission of India report.[2] In 2018, the United Nations Human Rights, UN Women, and the World Health Organization (WHO) demanded an end to the two-finger test, citing it as medically unnecessary, often painful, humiliating and a traumatic practice. Despite this, the two-finger test is still being carried out in India and other countries, even though the Verma committee recommendations have made rape test kits available to all medical institutions.
COMPARATIVE STUDY
The two-finger test is used in other countries as well. For Instance, in Pakistan, the Supreme Court of Pakistan declared it to be unconstitutional in the case of Atif Zareef v. The State.[3] It referred to an Indian case which stated that the test violated integrity of the victim. Similar to the remarks made by Indian courts, the Supreme Court of Pakistan that it was purely derogatory and traumatising to include the sexual history of women. Laws relating to sexual assault in Afghanistan is quite rigid. Often times the victim is prosecuted for adultery. Bimanual medical examination is a common practice in Afghanistan.[4]
In some cultures of south Africa, the test is done to determine the virginity of the girls. If found not a virgin, the father of the girl shall pay a fine. In the UK, there was a policy which ended in 1979 on virginity testing of immigrant women who are going to marry their fiancé living in the country as virgins were believed to tell truths about their migration.
JUSTICE VERMA COMMITTEE REPORT
The Justice Verma Committee was a three-member committee formed by the Indian Government in the wake of the brutal gang rape of a 23-year-old medical student in Delhi in December 2012.[5] The committee was headed by Justice J.S Verma, former Chief Justice of India, and included Justice Leila Seth, former Chief Justice of Himachal Pradesh High Court, and Gopal Subramaniam, former Solicitor General of India. The primary task of the committee was to suggest amendments to the criminal law system of India which would provide quicker trial and enhanced punishment for sexual assault cases.
The committee also took into consideration suggestions from the public on ways to make the system more accountable. The committee submitted its report to the government on 23rd January 2013 and issued comprehensive guidelines for the criminal justice system to deal with sexual violence cases. The changes proposed by the committee focused on four areas – criminal law, police and investigation, victim protection, and judicial response. The committee’s recommendations included increasing the punishments for different types of sexual crimes and introducing a new category of crime, called Aggravated Sexual Assault, which carries a minimum sentence of 20 years in jail. It also suggested allowing for the death penalty in the most heinous cases.
The report also prohibited the practice of the two-finger test, stating that the size or laxity of the vaginal introitus is immaterial in sexual assault cases. Further, it added that concluding a woman is ‘habituated to sexual intercourse’ on the basis of the result of the test is forbidden by law. The report states that since an intact hymen does not rule out the possibility of sexual assault, the hymen should be treated like any other part of the genitals during examination and only the most relevant after effects should be documented, such as tears, bleeding, etc.
SCs REITERATION
The bench comprising of Justices DY Chandrachud and Hima Kohli, on 31st October 2023, reiterated the ban on the two-finger test in a rape case. The court noted that the test was based on a false assumption that a woman who is sexually active cannot be raped. The two-finger test has no scientific basis and most importantly, “The probative value of a woman’s testimony does not depend on her sexual history”. Further, throwing light onto to previous statement, the court strongly pointed out that the test was patriarchal and sexist as it reflects the thought that the statement of a sexually active woman with regards to her rape cannot be believed. [6]
The Union Health Ministry was directed to make sure that no survivor of sexual assault and rape is put through the so-called test. In addition to instructing the Union and state governments to ensure that the Department of Health and Family Welfare’s guidelines are circulated to all government and private hospitals, the bench requested workshops to share proper examination methods with doctors and nurses.
The bench made the above remarks in an appeal against a judgement of the Telangana High Court which overturned the conviction recorded by a trial court in a rape case.
HIGH COURT
The Gujarat High Court in State of Gujarat vs. Rameshchandra Ramabhai Panchal[7] held that the that the two–finger test was the most unscientific method of examination used in the context of sexual assault and has no forensic value. It was stated that the test violated the victim’s right to privacy, integrity and dignity.
The court further held:
“This test, even if the report is affirmative, cannot ipso facto, give rise to presumption of consent.”
Referring to theInternational Covenant on Economic, Social, and Cultural Rights 1966 and the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985, the court held that victims of sexual assault are entitled to legal recourse that does not traumatize them. They are also entitled to medical procedures conducted in a manner that respects their right to consent.
In Narayanamma (Kum) v. State of Karnataka & Ors[8]., The Court asserted that the insertion of two fingers and the rupture of the hymen does not automatically suggest that the prosecutrix is accustomed to sexual intercourse. The doctor needs to assess whether the tearing of the hymen happened beforehand or already existed. The admission of two fingers should not be construed as a negative sign for the prosecutrix as the size of the fingers could be a factor. The doctor must specify whether there was pain and bleeding on contact, which would be related to the hymen.
This Court while dealing with the issue in State of Uttar Pradesh v. Munshi[9], The court has made it clear that no matter the victim’s past sexual activity, it does not give anyone the right to rape her. The accused is being held accountable for their actions, and the victim’s past is completely irrelevant. Every woman has the right to deny sexual activity with anyone, and a rape victim faces more than just physical injury as they experience psychological and emotional trauma.
In Narender Kumar v. State (NCT of Delhi)[10], this Court dealt with a case where the allegation was that the victim of rape herself was an unchaste woman with easy virtue. The court determined that the testimony of the prosecutrix alone was sufficient to result in a conviction if it was found to be reliable upon being read in its entirety. While the incident itself can be highly distressing for the victim, a false accusation of rape can have the same devastating effects on the accused.
The Court further held as under:
“Even in cases where there is some material to show that the victim was habituated to sexual intercourse, no inference of the victim being a woman of ‘easy virtues or a woman of ‘loose moral character’ can be drawn. Such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. Merely because a woman is of easy virtue, her evidence cannot be discarded on that ground alone rather it is to be cautiously appreciated.
In view of the provisions of Sections 53 and 54 of the Evidence Act, 1872, unless the character of the prosecutrix itself is in issue, her character is not a relevant factor to be taken into consideration at all.”
In the case of State of Punjab v. Ramdev Singh[11], the court held that rape is a serious violation of a victim’s right to privacy and dignity, as well as their right to safety and security under Article 21 of the Constitution. Courts should take a strong stance against such cases, as sexual violence degrades and humiliates the victim and can leave lasting psychological trauma. Rape is not only a crime against an individual, but a crime against the whole of society, and a violation of basic human rights. It is essential that justice is served in order to protect the fundamental rights of all individuals.
Victims are entitled to medical procedures conducted in a manner that respects their right to consent. Medical procedures must not be conducted in a way that is cruel, inhumane, or demeaning and the health of the person must be the most important factor when dealing with gender-based violence. The State is responsible for providing these services to survivors of sexual violence. Proper safety precautions should be taken and there should be no random or illegal intrusion into the person’s privacy.
The Supreme Court has clearly enunciated that the two-finger test is violative of the rights of the victims and medical practitioners are therefore to desist from such examination which affects the dignity of the individual. The observation of the Hon’ble Supreme Court being the law of the land Thutop Namgyal Bhutia @ Aku Namgyal vs. State of Sikkim[12] in binding and hence, there should be no tests as described above to repeatedly traumatise the victim.
GOVERNMNENT GUIDELINES
The Union health ministry issued a document in 2014 called “GUIDELINES & PROTOCOLS Medico-legal care for survivors/victims of sexual violence”. It explicitly stipulates that the “two-finger test” should not be conducted to determine rape or sexual assault and that the size of the vaginal opening has no relevance. Despite this, Per-Vaginum examination may be performed on adult women when medically necessary. Furthermore, the guidelines state that a rape victim’s consent (or that of their guardian if they are a minor or mentally incapacitated) is required for any medical examination, and that they shall not be denied medical treatment even if consent is not given. Nevertheless, these are only guidelines and are not legally binding.
CONCLUSION
The test is against the principles of gender equality and human rights as it perpetuated stereotypes about the superiority of male sexuality over female sexuality. It can cause physical and psychological damage to the woman, and is a violation of her right to bodily autonomy. Furthermore, it perpetuates a culture of victim-blaming and slut-shaming, as it implies that only a woman who is “pure” is worthy of respect. By banning the two-finger test, we can create a society where women are respected and treated with dignity.
[1] The Right to a fair trial and the Indian Evidence Act, FORUMIAS (Jan 25, 2023 3:00 PM), https://blog.forumias.com/the-right-to-a-fair-trial-and-the-indian-evidence-act/.
[2] Id.
[3] 2021 SCC Online Pak SC 1.
[4] Nilanjana Banerjee, Determining Legality and Moral Validity of the Two Finger Test: Evidence for Rape, LEGALBITES (Jan. 17, 2022 12:20 PM), https://www.legalbites.in/two-finger-test/.
[5] Kanu Sarda, Why the SC slammed the two-finger test on rape and sexual assault victims | Explained, INDIA TODAY, (Oct. 31, 2022 21:06 PM), https://www.indiatoday.in/law/story/why-sc-slammed-two-finger-test-rape-and-sexual-assault-victims-explained-2291634-2022-10-31.
[6] ‘Two-finger test’ of sexual assault victims: What SC said, past attempts to stop it, INDIAN EXPRESS (Nov. 1, 2022 21:57 PM), https://indianexpress.com/article/explained/two-finger-test-of-sexual-assault-victims-what-sc-said-past-attempts-to-stop-it-8243256/.
[7] 2020 SCC Online Gujarat 114.
[8] (1994) 5 SCC 728.
[9] AIR 2009 SC 370.
[10] AIR 2012 SC 2281; State of Maharashtra & Anr. v. Madhukar Narayan Mardikar, AIR 1991 SC 207; State of Punjab v. Gurmit Singh & Ors., AIR 1996 SC 1393; and State of U.P. v. Pappu @ Yunus & Anr., AIR 2005 SC 1248.
[11] AIR 2004 SC 1290.
[12] (2013) 14 SCC 643.
Author: Donna Gadiel
Juris Centre 