On January 29, the Gujarat High Court, in a strongly worded verdict, declared the ‘two-finger test’ to be violative of woman’s right to privacy and dignity and held the same to be unconstitutional. The Hon’ble Court noted that the said practice was in direct conflict with different constitutional and statutory provisions and directed the state to end this practice in view of its obligation in different international conventions apart from its constitutional mandate.
Several important questions tend to arise here; firstly, what is a ‘two-finger test’ and what scientific validity does it hold, Secondly, what is its necessity in medical procedures relating to sexual violence. Thirdly, how it creates a tension between the right to privacy and dignity of a woman on one hand and the necessity of dispensing medical evidence on the other, and lastly, how it fails to pass the basic constitutional standards that ultimately renders it unconstitutional. The present article sets out to answer the aforementioned questions in light of the recent judgments of the Supreme Court and the High Courts of India.
‘Two-Finger Test’ and its Scientific Validity
In the incidents when a rape is reported and an FIR is registered, the law provides for an immediate medical examination of the victim [Sec. 164(A) of the Code of Criminal Procedure, 1973] to determine the veracity of the claims and that’s when the ‘Two-Finger test’ comes in. The two-finger test, also known as PV (Per Vaginal) examination or ‘virginity test’, is a practice where the examining doctor notes the presence or absence of the hymen and so-called laxity of the vagina of the rape survivor by putting his or her two fingers inside the woman’s vagina. The ease with which the fingers penetrate her is assumed to be in direct proportion to her sexual experience and determines whether the girl or woman is a ‘virgin’ or ‘habituated to sexual intercourse’. Although this test is conducted purely to examine genital organs for forced penetration, document injuries and collect samples, it is often used against the victims during trials to assert that the victim had “loose” or “lax” morals. It is significant to note that results based on the two-finger test are completely baseless and unscientific in nature. It is a subjective test that depends on biased and personalized factors, including the thickness of each doctor’s fingers and due to this subjectivity it ultimately loses its confidence and validity in legal jurisprudence. The Apex Court too had reiterated the same in Narayanamma (Kum) v. State of Karnataka, by holding that “fact of admission of two fingers and the hymen rupture does not give a clear indication that prosecutrix is habitual to sexual intercourse.”
Legal Standpoint of the Test
The proviso to Section 146 of the Indian Evidence Act prohibits putting of questions in the cross-examination to the prosecutrix as to her general immoral character in the case of rape or attempt to commit rape. Section 155 of the same Act goes one step further and forbids rape victim’s credibility to be compromised on the ground that she is of ‘immoral character’. Despite the aforesaid provisions, this test leading to the formation of the medical opinion regarding ‘consent’ allows the past sexual history of the victim to cause prejudice to her testimony.
For the offence of rape under Section 375 of Indian Penal Code, even partial penetration of the penis, with or without emission of semen, or even an attempt at penetration, becomes quite sufficient and it nullifies the need for conducting such a test but as Indian medical practice has become disconnected from legal developments, this practice continues unhampered.
In 2014, the Health Ministry issued guidelines that specifically banned the two-finger test on rape survivors and endeavored to integrate medical processes that address women’s and children’s privacy and dignity. This was in addition to its obligations of providing dignified medical treatment and respecting victim’s privacy under International 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 to which India is a party. However, an investigation by Human Rights Watch in 2017 revealed that instead of providing the first line of therapeutic care and counseling to survivors, doctors continue to conduct the intrusive and demeaning finger test to make ignominious characterizations resulting in further traumatization of the rape survivors.
Even the Apex Court had expressed its anguish by stating that the “two-finger test is inhuman and cruel and that its results, even if affirmative, cannot ipso facto be used against the prosecutrix” and that “past sexual experience cannot be a determinative factor and is immaterial to the issue of ‘consent’ in a rape trial.” It has even taken suo-moto cognizance of the same in 2019 to take necessary stock of the implementation of women-friendly laws in the criminal justice system, including ‘whether the medical experts have finally done away with the two-Finger test’.
Right to Privacy and Dignity
Privacy and dignity of human life have always been cherished as fundamental rights of every human being. Such rights have been extended even to a woman of ‘easy virtues’ as she has been held to be entitled to her right to privacy and dignity. In Selvi v. State of Karnataka, the Supreme Court, while conceptualizing ‘privacy’, highlighted the distinction between ‘privacy as a right in a physical sense’ and ‘privacy of one’s mental processes’ and held both to be an inherent part of Article 21 of the Constitution of India.
In the landmark case of Justice K.S. Puttaswamy(Retd) v. Union of India, Justice Chandrachud highlighted the nexus between Privacy and Dignity when he observed that,
“The sanctity of privacy lies in its functional relationship with dignity. Privacy is an essential facet of the human dignity. It ensures that a human being can lead a life of dignity by securing the inner recesses of the human personality from unwanted intrusion.”
With this, it becomes absolutely certain that a law, which infringes upon privacy and dignity of an individual, will have to withstand the touchstone of permissible limitations on fundamental rights. With regard to Article 21, an intrusion of privacy must be justified based on a law, which stipulates a procedure, which is reasonable, just and fair.
In a country with extensive gender discrimination and oppression, a medical examination, which is taken without the consent of the woman and is unscientific and legally untenable, which recognizes an unmarried woman as ‘habituated to intercourse’ attaches an extreme stigma to her, exacerbating the existing shame she faces while reporting incidents of rapes. By determining a woman’s ‘character’ with her past sexual experience and consequently undermining her confidence to stand up against such ruthless offences, this test violates the very ethos of privacy and dignity of an individual and does not leave any stone unturned in reducing the rights of women to a second class citizen.
It is undoubtedly a fact that despite protests by general society, recommendations by different committees and express prohibition by the Supreme Court, Two Finger Test still remains a common practice. The lawmakers and law enforcers must take stringent steps to curb the same and ensure that these rights are not only identified but also cherished by each and every person of India. With an increase in reporting of cases pertaining to sexual violence, the state must endeavor not only to deter such crimes but also to provide effective and dignified medical services to the survivors of such offences. Recognition of rights, without means to exercise them, renders the right hollow and illusory. Unless and until lawmakers and law enforcers work together in this regard, the principle of justice will be miles away.
[The author is a law student at Gujarat National Law University, Gandhinagar. He extends his gratitude to Mr. Zaid Deva for providing his valuable insight for this article.]
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