INTRODUCTION
On October 31, the Supreme Court reiterated the ban on using the “two-finger test” in rape cases and issued a warning that those who do so will be found guilty of misconduct. The bench of Justices DY Chandrachud and Hima Kohli expressed concern that such an assessment procedure was still in use today, pointing out that the test was founded on a patriarchal attitude that presumed that sexually active women could not be raped. This patriarchal, antiquated medical practice was still in use in 2013 despite being outlawed. The Supreme Court made the remarks in response to a petition filed by the Jharkhand government challenging Shailendra Kumar Rai’s, aka Pandav Rai’s, acquittal in a rape case. A teenage girl was allegedly burned alive and raped by Shailendra in Deoghar in 2004.
WHAT IS THE TWO–FINGER TEST?
In an overtly intrusive physical examination known as a “per vaginal” or “two-finger test,” a doctor places two fingers within the vagina of a rape victim to see whether the hymen is still intact. It looks at the flexibility of the vaginal muscles to see if the lady has engaged in or been exposed to sexual activity—a sign of virginity. Sometimes it involves looking at the size of the vaginal opening and checking for hymen tears.
Defense Counsel has cited the results of this test as “evidence” in court to argue that the rape victim had “loose” or “lax” morals. This can result in the distortion of justice as well as discourage rape victims from coming forward since they are afraid of being held accountable.
HUMAN RIGHTS ARE VIOLATED BY THE TWO-FINGER OR VIRGINITY TEST
The two-finger test, often known as the virginity test, involves physically inspecting a woman’s genitalia to assess the flexibility of the vagina and her history of sexual activity. Rape victims have a right to legal representation that doesn’t traumatize them or infringe on their bodily or mental integrity and dignity, as stated in the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power of 1985. The Court ruled that the purpose of medical staff’s examinations of rape survivors and their use of the medical data gathered during the trial should be limited to establishing the victim’s rape status, not her virginity. The two-finger test is an unreliable method that emphasizes the patriarchal preoccupation with the virginity of women.
The two-finger test is an unconstitutional violation of the right to privacy, bodily and mental integrity, and dignity of rape survivors, according to the Supreme Court of India in Lilu @ Rajesh and Anr v. State of Haryana (2013). The government was asked by the court to offer better medical procedures to confirm sexual assault. Virginity tests have been documented in at least twenty different nations, and the UN has called for an end to this painful, degrading, and terrifying practice.
In order to end violence against women, the World Health Organization (WHO), UN Women, and UN Human Rights advocated for a ban on the two-finger test in 2018. “Medically unnecessary, frequently painful, humiliating, and traumatic practice that must end”.
The two-finger test is still used in some situations, nevertheless. An Indian Air Force officer at the Coimbatore Air Force Administrative College claimed that her classmate had committed rape and had been subjected to the illegal “two-finger test” to corroborate the assault in 2018.
TWO-FINGER TEST IS UNCONSTITUTIONAL
The bench expressed regret that, notwithstanding the highest court’s earlier rulings banning the use of the “regressive and invasive test,” the medical board of Deoghar Sadar Hospital conducted the two-finger test when assessing the victim in the current case. The two-finger test is “unscientific,” “patriarchal,” and “sexist,” according to the bench, which was made up of Justices DY Chandrachud and Hima Kohli. The court requested that steps be taken to ensure that the ban is properly implemented.
The bench states that “The supposedly scientific test is unfounded. Instead, it victimizes and dehumanizes women yet again. It is forbidden to perform the two-finger test. The test is founded on the false presumption that a woman who is sexually active cannot be raped. Nothing could be more wrong than that.” The bench instructed the Union Health Ministry to prevent the two-finger test from being used on victims of sexual assault and rape. “A woman’s sexual background has no effect on how credible her evidence is. The bench said, “Suggesting that a woman cannot be believed when she claims she was raped, just because she is sexually active is patriarchal and sexist.
CONCLUSION
The Supreme Court ordered the central and state governments to ensure that all hospitals receive the 2014 guidelines to standardize the medical examination and treatment of sexual assault survivors, to hold training sessions for healthcare professionals, and to review the curriculum for medical schools. The Indian government has reaffirmed its commitment to delivering justice for women who have experienced violence. Authorities should ensure that medical personnel treat sexual assault survivors with respect, establish a safe environment of trust for treatment and assessment, and offer essential support and therapeutic care services rather than maintaining patriarchal traditions that denigrate women.
The decision is significant because it sparks discussions on the crucial issues of gender-based violence, consent, survivor-centric justice, trauma-informed care, and other feminist justice issues. The ramifications of this choice are extensive; procedures like the “two-finger test” rendered rape survivors helpless and traumatized when they opted to report rape to law enforcement agencies.
Author’s Name: Shivam Kumar (Jamia Millia Islamia, New Delhi)
