New Delhi: A Supreme Court bench comprising Justices DY Chandrachud and Hima Kohli, on Monday, prohibited the two-finger test, directing that those conducting the two-finger (virginity) test on rape survivors shall be prosecuted for criminal misconduct.
The SC bench led by Justice Dhananjaya Y Chandrachud expressed condemnation of the practice’s continuation despite the fact that it had been established to be devoid of any scientific basis for determining the victim’s sexual history. The bench emphasised that the two-finger test remains outlawed by the top court through a raft of judgments starting in 2013.
“This court has time and again deprecated the use of the two-finger test in cases alleging rape and sexual assault. The so-called test has no scientific basis and is an invasive method of examining rape survivors… It instead re-victimises and re-traumatises women. The two-finger test must not be conducted,” Justice Chandrachud said reading the judgement.
The bench also stated that the two-finger test is based on an incorrect and deeply flawed assumption that a sexually active woman cannot be raped.
“The probative value of a woman’s testimony does not depend on her sexual history. It is patriarchal and sexist to suggest that a woman cannot be believed when she states that she was raped merely because she is sexually active”, the bench added.
According to the court, to include Section 53A in the Indian Evidence Act, the legislature changed the criminal code in 2013.
“In terms of Section 53A, the evidence of a victim’s character or her previous sexual experience with any person shall not be relevant to the issue of consent or the quality of consent in the prosecution of sexual offenses,” the court held.
The Bench mentioned that the Ministry of Health and Family Welfare had published instructions for medical professionals dealing with sexual assault, and the guidelines prohibiting the use of the two-finger test. “But it is regrettable that it [two-finger test] continues even today,” the court emphasised.
The court ordered the central government and the state governments to make sure the instructions from the ministry were adhered to strictly.
The court also mandated that private and public hospitals receive the guidelines prohibiting the two-finger test.
It further stated that courses must be held to educate medical professionals on the proper protocol for examining sexual assault survivors.
The medical school curriculum needs to be altered, the court said. It directed that copies of the verdict be given to the Health Ministry, which was to distribute them to the States’ home and health departments. The decision should be distributed by the home departments to the Director Generals of Police in the states.
