The Supreme Court on Monday ordered a ban on “two-finger test" in rape cases and warned that persons conducting such tests will be held guilty of misconduct.
The two-finger test is an unscientific and intrusive physical examination that involves insertion of two fingers into a woman’s vagina to measure the laxity of muscles and determine her ‘virginity’. It is based on the patriarchal assumption that a woman who is sexually active is less likely to have been sexually assaulted; several judgments and research have shown that a person’s sexual history has no bearing on sexual assault.
The Supreme Court had deemed the practice unconstitutional in 2013 and held that the test should not be performed.
A look at the observations of the bench comprising Justices DY Chandrachud and Hima Kohli on the test:
- The Supreme Court deprecates the use of this regressive and invasive test in cases alleging rape and sexual assault. This so-called test has no scientific basis.
- Two-finger test neither proves nor disproves allegations of rape.
- Two-finger test re-victimises and re-traumatises women who may have been sexually assaulted, and is an affront to their dignity.
- The Supreme Court reiterates its observation in Lillu vs. State of Haryana (2013) that the two-finger test violates the right to privacy, integrity, and dignity.
- Whether a woman is “habituated to sexual intercourse” or “habitual to sexual intercourse” is irrelevant for the purposes of determining whether the ingredients of Section 375 (rape) of the IPC are present
- The test based on “incorrect assumption” that a sexually active woman cannot be raped.
- Probative value of a woman’s testimony does not depend upon her sexual history.
- 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.
- Regrettable fact that two-finger test continues to be conducted even today.
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- The Union and State Governments to ensure guidelines against test formulated by Ministry of Health and Family Welfare are circulated to all hospitals.
- The Governments to ensure that workshops are conducted to ensure appropriate procedure is adopted while examining survivors of sexual assault and rape.
- The Government shall review medical school curriculum to ensure “two-finger test” or per vaginum examination is not prescribed as procedure to examine rape and sexual assault survivors.
- 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 the directions of this Court shall be guilty of misconduct.
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