Supreme Court warns states on 2-finger test to confirm rape
New Delhi, October 31
The Supreme Court today deprecated the “regressive” and “invasive” practice of the ‘two-finger test’ on rape survivors and said it had no scientific basis and instead re-victimised women who might have been sexually assaulted, and was an affront to their dignity.
Editorial: Two-finger test is a crime
The top court issued a slew of directions to the Centre and state governments that any person who conducted 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 the court shall be guilty of misconduct.
Regressive and invasive practice
It’s a regressive and invasive test… has no scientific basis and neither proves nor disproves allegations of rape. It instead re-victimises and re-traumatises women who may have been sexually assaulted, and is an affront to their dignity. —SC Bench
The two-finger test is conducted on victims of sexual assault and rape to determine whether they are habituated to sexual intercourse. The top court said it was “patriarchal” and “sexist” to suggest that a woman could not be believed when she stated that she was raped, merely for the reason that she was sexually active.
A Bench of Justices DY Chandrachud and Hima Kohli made the remarks in a judgment on a plea of the Jharkhand Government in which it challenged the acquittal of one Shailendra Kumar Rai, alias Pandav Rai, of rape and murder charges. The top court overturned the decision of the High Court and upheld the trial court order holding Rai guilty of rape and murder and awarded him life sentence.
The Bench noted that while examining the victim, the medical board of the Sadar hospital at Deoghar in Jharkhand conducted the two-finger test to determine whether she was habituated to sexual intercourse. “This court has time and again deprecated the use of this regressive and invasive test in cases alleging rape and sexual assault. This so-called test has no scientific basis and neither proves nor disproves allegations of rape. It instead re-victimises and re-traumatises women who may have been sexually assaulted, and is an affront to their dignity. The two-finger test or per vaginum test must not be conducted,” it noted.
The Bench referred to its 2013 verdict in Lillu versus State of Haryana, where it was held that the test violated the right to privacy, integrity and dignity of a woman. “Nothing could be further from the truth—a woman’s sexual history is wholly immaterial while adjudicating whether the accused raped her. Further, the probative value of a woman’s testimony does not depend upon her sexual history. It is 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,” the Bench said in its parting remark of the verdict.
It issued a slew of directions to the Centre and state governments to ensure that the guidelines formulated by the Ministry of Health and Family Welfare are circulated to all government and private hospitals.
