by Khushi Banal, a penultimate-year law student at Symbiosis Law School, NOIDA.

 

Colonial rape trials in India focussed extensively on assessing the vaginal laxity of a woman to ascertain her sexual activity being driven by the suspicion that Indian women being ‘Liars’ have a tendency to file fabricated cases. However, the Indian Supreme Court in Lillu @ Rajesh & Anr v State of Haryana [2013] and subsequently in State of Jharkhand v Shailendra Kumar Rai [2022], instituted a complete prohibition on the ‘Two-Finger Test’ (‘Test’) on the grounds of it being intrusive to the rape survivors’ dignity and integrity. Here, I call for the rigorous enforcement of the prohibitions established by the top court in the aforementioned rulings.

Understanding this test

This so-called test is an unscientific and regressive examination that involves the insertion of two fingers into a victim’s vagina to ascertain the laxity of vaginal muscles, thereby determining her virginity. These tests were used to form an opinion on the rape complainant’s previous indulgence in sexual activities. This test was particularly pertinent during colonial era wherein chastity of a woman was to be looked at during a rape trial. However, it is well settled that the status of hymen is not relevant because it can tear due to various reasons such as rigorous physical activity like cycling and masturbation.

The path to prohibition

There have been several instances which culminated into this regressive test being outlawed by the top court. The primary motivation was adherence to the International treaties; wherein certain rights of the rape survivors have been held to be paramount. Article 12 of the International Covenant on Economic, Social and Cultural Rights [1966]  and Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power [1985] categorically mentions the right of rape victims to legal proceedings that do not re-traumatise them or intrude their privacy or integrity in any manner.

In 2010, the Human Rights Watch conducted a study in India to assess the prevalence of the two-finger test, which was highlighted as being ‘nearly universal’. Furthermore, it was mentioned that the defence’s side used it as a tool in order to shake the morale of the survivors and discredit their testimony. Therefore, it was suggested to prohibit the use of this test from all forensic examinations in trials.

In 2013, Justice Verma Committee Report underscored the fact that size of the vaginal introitus has no bearing on any case and that this test be strictly forbidden. Following this, in Lilu @ Rajesh, the Supreme Court held that medical procedures must not be carried out in a cruel, inhumane or degrading manner especially while dealing with cases of gender-based violence. Furthermore, Section 53A of the Indian Evidence Act, 1872 made the previous sexual experience or character of a victim absolutely irrelevant for the purposes of a trial.

Despite these significant developments, in 2019 several rape survivors and their families were forced to write a letter to the apex court to cancel the licences of the medical practitioners who still conduct this test. Ensuing this, in Shailendra Kumar [2022], the top court held that this test is violative of the survivor’s several fundamental rights which have been guaranteed by the Indian Constitution. Thus, a blanket ban was imposed on such an examination.

The way forward and concluding remarks

In order to ensure the effective implementation of the Supreme Court’s prohibition of this test, it is imperative to conduct training sessions for the law enforcement officers and medical practitioners emphasising the patent illegality of this test. Furthermore, strict monitoring and accountability mechanisms will assist deter violations. Additionally, public awareness campaigns are necessary to educate survivors of their legal rights. Finally, enforcing penalties against the non-compliant practitioners’ will discourage this practice.

To conclude, the blanket prohibition on this test is a welcome step in the right direction which ensures the protection of rape survivors’ privacy and dignity. The steadfast implementation of the court’s directives is the need of the hour.

 

Disclaimer: The views and opinions expressed are those of the author. They are for informational purposes only and do not reflect the official policy or position of UCL SPBC.