NEW DELHI: Deprecating continued use of the banned invasive two-finger test to determine a rape survivor’s prior sexual conduct, the Supreme Court on Monday ordered the Union and state governments to take steps to erase the humiliating test from medical curriculum and warned that doctors would be guilty of misconduct for carrying it out.
“The two-finger 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,” said a bench of Justices DY Chandrachud and Hima Kohli. The SC in 2013 had declared that the “two-finger test violates the right of rape survivors to privacy, physical and mental integrity and dignity”.
The bench said, “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 because she is sexually active.”
"The two-finger test was abhorrent, insensitive and sexist. The apex court has rightly ordered the removal of this practice from study material of all medical colleges.-Times View"
The bench gave this ruling while reversing a Jharkhand high court decision to acquit a man of rape-cum-murder charges. The SC upheld the trial court’s conviction order and sentenced to life imprisonment a man who had raped a 16-year-old girl and then set her afire to cause her death.
The medical board had subjected the rape survivor, battling for her life due to severe burn injuries, to the archaic two-finger test. It was this which caused disgust to the SC. Writing the judgment for the bench, Justice Chandrachud said it was regrettable that the two-finger test continues to be conducted even today despite directions against it.
“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 bench warned.
It directed the Centre and states to 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 home secretaries of each state shall in addition issue directions to the directors general of police in this regard. The DGPs shall, in turn, communicate these directions to the superintendents of police (SPs),” the bench said to ensure scrupulous compliance of its orders.
Justice Chandrachud said the two-finger test “has no scientific basis and neither proves nor disproves allegations of rape. It instead re-victimises and re-traumatises 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.”
The bench said 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.
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 said.
