Two-finger test on rape survivors patriarchal, sexist, unconstitutional and unscientific. Comment.
- The two-finger test, carried out by a medical practitioner, involves the examination of her vagina to check if she is habituated to sexual intercourse.
- The practice is unscientific and does not provide any definite information. Moreover, such ‘information’ has no bearing on an allegation of rape.
- A woman who has been sexually assaulted undergoes a medical examinationfor ascertaining her health and medical needs, collection of evidence, etc.
- A handbook released by the World Health Organization (WHO)on dealing with sexual assault victims says, “There is no place for virginity (or ‘two-finger’) testing; it has no scientific validity.”
Supreme Court’s Observation
- In 2004, a bench of Supreme Court stated that “whether a woman is ‘habituated to sexual intercourse’ or ‘habitual to sexual intercourse’ is irrelevantfor the purposes of determining whether the ingredients of Section 375 (rape) of the IPC are present in a particular case.
- The court stated that it is patriarchal and sexist to suggest that a woman cannot be believedwhen she states that she was raped, merely for the reason that she is sexually active.
- In May 2013, the apex court had held that the two-finger test violates a woman’s right to privacyand asked the government to provide better medical procedures to confirm sexual assault.
- Invoking the International Covenant on Economic, Social, and Cultural Rights 1966and the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985, the apex court said rape survivors are entitled to legal recourse that does not re-traumatise them or violate their physical or mental integrity and dignity.
- In April 2022, the Madras High Court directed the state to ban the two-finger test.
- Two finger test on rape victims violates her Right to Privacy a fundamental right under Article 21. Supreme Court of India (SCI) in Justice K.S. Puttaswamy (Retd) vs Union of India upheld the right to privacy.
Government’s Guidelines
- After the 2013 Justice Verma Committeereport on amendments to criminal law for a faster trial, and enhanced punishment in sexual assault cases, the Union Health Ministry brought out detailed guidelines for the medical examination of victims of sexual assault in early 2014.
- According to the guidelines‘two-finger test’, must not be conducted for establishing rape/sexual violence.
- The guidelines state that a rape victim’s consent (or her guardian’s, if she is minor/mentally disabled) is necessary for any medical examination.Even if the consent is not provided, the victim cannot be denied medical treatment.
- However, these are guidelines and are not legally binding.
Looking ahead
- The guidelines issued by the Ministry of Health and Family Welfare should be circulated to private and government hospitals.
- Workshops should be held for health providers to prevent the test from being conducted on rape survivors.
- The issue can be addressed by widespread sensitization and training of both doctors and police personnel.
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