TWO – FINGER TEST OUTLAWED IN INDIA

Two -Finger Test Outlawed In India

INTRODUCTION:

Most rape or sexual harassment workers do not register their cases because of the two-finger test which they have to go through. The two-finger test is a disruptive test that a victim has to go through where the examiners check whether the hymen of the victim is broken or not.

Regarding which Hon’ble Justice D.Y.Chandrachud and Justice Hima Kohli of the apex court of India recently passed a judgment on The State of Jharkhand v. Shailendra Kumar Rai@Pradeep Rai in which they prohibited the “two-finger test” or pre vaginum where they stated that whoever conducts such test will be held guilty of misconduct.

The bench very well stated that the Hon’ble Apex court has time and again deprecated the use of two-finger tests in the cases of rape and sexual assault. This so-called test has no scientific basis and neither proves nor disproves allegations of rape and sexual assault. 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.

The hon’ble justices added that “The probative value of a woman’s testimony does not depend on her sexual history. It is patriarchal and sexist to suggest that a woman cannot be believed when she states that she was raped merely because she is sexually active”

The court across the years has very well depicted that such kind of demeaning test should not be held to disgust and scare the already scared victims. This “two-finger test” is done to validate the patriarchal notion amongst society as to, if a woman is sexually active then there are fewer chances of her being raped or sexually assaulted.

What Is A Two-Finger Test?

The test is used to identify whether the rape allegation charging to herself is true or not. The said test is an extremely unscientific and regressive procedure in which the medical examiner inserts two fingers into a person’s vagina to gauge the laxity of vaginal muscles, thereby determining her “virginity”.

The major aim is checking the presence/absence of a hymen and whether the vaginal muscles of the victim are loose or not.  Further, if the reports show that the victim has already been involved in sexual activities then the opposite counsel starts the procedure of character assassination of the victim by saying that it is a possibility that the person is habituated to intercourse and the allegations of rape are false and fake.

Past Decisions Of The Apex Court On The “Two-Finger Test”

The hon’ble former CJI Justice Verma formed a committee named “Justice Verma Committee “ and the committee rightly recommended the banning of the two-finger test. They stated that “It is crucial to underscore that the size of the vaginal introitus has no bearing on a case of sexual assault, and therefore a test to ascertain the laxity of the vaginal muscles, which is commonly referred to as the two-finger test, must not be conducted. Based on this test observations/ conclusions such as ‘habituated to sexual intercourse’ should not be made and this is forbidden by law,”.

The hon’ble supreme court in the year 2013 in Lilu@Rajesh and Anr v. State of Haryana undoubtedly ruled that the two-finger test is unconstitutional. It violates the rights of rape survivors of privacy, physical and mental integrity, and dignity. Thus, this test, even if the report is affirmative cannot ispo facto, give rise to the presumption of consent.

Following this, the hon’ble bench of Justice B.S.Chauhan and F.M.I Kalifulla respectfully asked the government to provide better medical procedures to confirm the victim’s claim of sexual assault. The bench clearly stated that the State is under an obligation to provide such services to victims of sexual assault. They must ensure safety and there shall not be any arbitrary or unlawful interference with the privacy of the victim.

The bench clearly said that even if the result is affirmative, it does not lead to the presumption of consent on the part of the victim.

Further in the year 2014, the Union Health Ministry laid down the “GUIDELINES AND PROTOCOLS MEDICO-LEGAL CARE FOR SURVIVORS/VICTIMS OF SEXUAL VIOLENCE” where they rightly stated that “Per-Vaginum examination commonly referred to by laypersons as ‘two-finger test’, must not be conducted for establishing rape/sexual violence and the size of the vaginal introitus [opening] has no bearing on a case of sexual violence. Per vaginum examination can be done only in adult women when medically indicated.”

International View On Two-Finger Test

In 2014 WHO, UN Women, and UNFPA released a clinical handbook with the title of “ Healthcare for women subjected to intimate partner violence or sexual violence” which said that “There is no place for virginity (or ‘two-finger’) testing; it has no scientific validity.” Further, the handbook also asks healthcare workers to remember that “being sexually assaulted is a traumatic event” and to “be very careful not to increase her distress”.

“There was also a social media campaign in 2018 by the WHO and UN stating that the test should be banned. Even the guidelines released by our Ministry of Health and Family Welfare (MoHFW) state the same. But the thing is, these changes are not communicated to the doctors and judicial authorities and police properly,” says Dr. Mohamed Khader Meeran, author of Patients’ Rights in India. The ‘Guidelines and Protocols – Medico-legal Care for Survivors/Victims of Sexual Violence’ released by the MoHFW in 2014 states that the test “must not be conducted for establishing rape/sexual violence”.

Laws Related To Rape In India

After the very infamous Mathura rape case a legal reform came in India and the Government passed “ The criminal law (second amendment) act,1983 which brought significant addition of sections 376-B, 376-C and 376- D which dealt with custodial rape.

Section 114A was also inserted into the Indian Evidence Act, of 1872, under which when a girl states that there was no consent given by her then the court has presumed the same and the onus of proof lies on the accused.

Further, after the Nirbhaya Rape Case Justice Verma committee was established which recommended the insertion of certain offenses such as Voyeurism, Stalking, and Intentional Touching in the Penal code.

Justice Verma committee rightly stated on the two-finger test that “the size of the vaginal introitus has no bearing on a case of sexual assault, and therefore a test to ascertain the laxity of the vaginal muscles which is commonly referred to as the two-finger test must not be conducted. Based on this test observations/ conclusions such as ‘habituated to sexual intercourse’ should not be made and this is forbidden by law”.

After which “THE CRIMINAL LAW AMENDMENT ACT 2013” came into force which amended section 375

Also, the definition of consent was added as – “an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates a willingness to participate in the specific sexual act”

And lastly, “THE CRIMINAL LAW AMENDMENT ACT 2018” amended sections 166A, 228A, and 376 of IPC and added sections 376AB, 376DA, and 376DB.

CONCLUSION

There are a lot of cases that are not reported due to the fear of humiliation or performance of a demeaning “two-finger test” that a victim has to go through after getting raped or sexually assaulted. These acts eventually add up to the trauma caused to victims.

There is a dire need for legislative reforms in the judicial system of the country. As rightly directed by the Hon’ble justices of the apex court to the Ministry of Health and Family Welfare to formulate guidelines and circulate them to all government and private hospitals;

Conduct workshops for health providers to communicate the appropriate procedure to be adopted while examining survivors of sexual assault and rape; and

Review the curriculum in medical schools to ensure that the “two-finger test” or per vaginum examination is not prescribed as one of the procedures to be adopted while examining survivors of sexual assault and rape.

These procedures are to be ensured by the government to protect the dignity of victims of sexual harassment. There needs to be more guidelines or rules set up to provide justice to victims.

REFERENCES-

• https://www.livelaw.in/tags/state-of-jharkhand-vs-shailendra-kumar-rai-pandav-rai-2022-livelaw-sc-890
• https://www.thenewsminute.com/article/two-finger-test-rape-survivors-banned-so-why-it-still-performed-163627
• https://www.outlookindia.com/national/explained-what-is-two-finger-test-on-rape-survivors-and-why-has-sc-banned-the-unscientific-practice-news-234114
• https://blog.finology.in/Legal-news/two-finger-test

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