Supreme Court deprecates 'regressive' two-finger test on rape victims

New Delhi: The Supreme Court on Monday deprecated the "regressive" and "invasive" practice of the 'two-finger test' on rape survivors and said it has no scientific basis and instead re-victimises women who may have been sexually assaulted, and is an affront to their dignity. 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 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.

It said 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.

A bench of Justices D Y Chandrachud and Hima Kohli made the remarks in a judgement 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.

"We therefore set aside the High Court's decision dated January 27, 2018 and restore the Sessions Court's judgment dated October 10, 2006 convicting the respondent of offences punishable under Sections 302, 341, 376 and 448 of the IPC, as well as its order dated October 11, 2006 sentencing the respondent (Rai) to rigorous imprisonment for life for the offence punishable under Section 302 of the IPC and rigorous imprisonment for 10 years for the offence punishable under Section 376 of the IPC.

"These sentences are to run concurrently. The respondent shall be taken into custody to serve the sentence immediately," the bench said.

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-victimizes and re-traumatizes 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 violates 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.

The bench added that whether a woman is "habituated to sexual intercourse" or "habitual to sexual intercourse" is irrelevant for the purposes of determining whether the ingredients of Section 375 of the IPC (rape) are present in a particular case.

The so-called test is based on the incorrect assumption that a sexually active woman cannot be raped, it said.

The bench said the legislature explicitly recognised this fact when it enacted the Criminal Law (Amendment) Act 2013 which inter alia amended the Evidence Act to insert Section 53A.

"In terms of Section 53A of the Evidence Act, evidence of a victim's character or of her previous sexual experience with any person shall not be relevant to the issue of consent or the quality of consent, in prosecutions of sexual offences," the bench added.

It said the Ministry of Health and Family Welfare had issued guidelines on March 19, 2014, for health providers in cases of sexual violence -- Medico-legal care for survivors/victims of sexual violence -- which proscribe the application of the two-finger test.

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.

"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 bench said.

It directed that a copy of this judgment shall be shared with the secretary, Union Ministry of Health and Family Welfare and he shall transmit copies of this judgment to the principal secretary (Department of Public Health) of each state.

"The Principal Secretaries in the Departments of Health of each state shall also be responsible for ensuring the implementation of the directions issued in this judgment. The Secretaries in the Departments of Home of each state shall in addition issue directions to the Directors General of Police in this regard. The Directors General of Police shall, in turn, communicate these directions to the Superintendents of Police," the bench added.