The Supreme Court on Monday held that any person found conducting two-finger test on a victim in rape or penetrative sexual assault cases will be guilty of misconduct [State of Jharkhand vs Shailendra Kumar Rai].
A division bench of Justices DY Chandrachud and Hima Kohli ordered a review of the curriculum in medical schools with a view to ensuring that the “two-finger test” is not prescribed as one of the procedures to be adopted while examining survivors of sexual assault and rape.
“Any person who conducts 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 this Court shall be guilty of misconduct,” the judgment said.
The Court took a dim view of the fact that such tests were being conducted even today and said that the same had no scientific basis and retraumatised victims of sexual assault.
“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-victimizes and re-traumatizes women who may have been sexually assaulted, and is an affront to their dignity. The “two-finger test” or pre vaginum test must not be conducted.”
Sexual history of a rape survivor is irrelevant to determine whether the offence of rape has been made out and the assumption that a sexually active woman cannot be raped is incorrect, the Court emphasised.
“The so-called test is based on the incorrect assumption that a sexually active woman cannot be raped. 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 judgment said.
The Court further stated that it was ‘regrettable’ that the practice of two-finger test was continuing till date and issued the following directions to the Central and State governments to tackle the problem:
– Ensure that the guidelines formulated by the Ministry of Health and Family Welfare are circulated to all government and private hospitals;
– Conduct workshops for health providers to communicate the appropriate procedure to be adopted while examining survivors of sexual assault and rape; and
– Review the curriculum in medical schools with a view to ensuring that the “two-finger test” or per vaginum examination is not prescribed as one of the procedures to be adopted while examining survivors of sexual assault and rape
The judgement also directed the Union Ministry of Health to ensure that the directions in the judgment are complied with in coordination with the Director Generals of Police in States.
The order was passed by the Bench while restoring a High Court conviction against a person accused of rape and murder of a woman.
The appeal, filed by the Jharkhand government, arose from a January 2018 judgment of the Jharkhand High Court that had set aside the order of conviction by the sessions judge.
The Sessions judge had convicted the respondent and sentenced him to life imprisonment.
Advocate Braj Kishore Mishra appeared for the accused. Advocate Vishnu Sharma appeared for the State.