SC bans two-finger test again saying it re-victimises, re-traumatises rape survivors

Any person who conducts the ‘two-finger test’ or per vaginum examination shall be guilty of misconduct, the Supreme Court said on Monday, October 31, prohibiting its conduct. The court was hearing the appeal to a judgment of the High Court of Jharkhand which set aside the coviction of a rape accused. The court also said that the evidence of a survivor’s character or of their previous sexual experience with any person shall not be relevant to the issue of consent.
A bench of justices Dhananjaya Y Chandrachud and Hima Kohli made the observations regarding two-finger test while hearing a case pertaining to the rape and murder of a 16-year-old girl in Narangi village of Jharkhand in the year 2004. 

‘Two-finger test re-victimises, re-traumatises’
As parting remarks, the judges made important observations regarding the two-finger test and passed orders regarding the same. Stating that the Medical Board, while examining the girl, had conducted the ‘two-finger test’ to determine whether she was habituated to sexual intercourse, the court pointed out that it had 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-victimises and re-traumatises women who may have been sexually assaulted, and is an affront to their dignity,” the court said.
The unscientific test involves the insertion of two fingers into a person’s vagina to test the laxity of vaginal muscles. This is used to determine the ‘virginity’ of the woman.
The bench also reiterated that the ‘two-finger’ test or per vaginum test must not be conducted, and reminded that the apex court in Lillu vs State of Haryana case of 2013 held that the test violates the right to privacy, integrity, and dignity.

‘Woman’s sexual history irrelevant’
The court also said that it was not relevant to cases dealing with Section 375 (Rape) of IPC, if a woman was habituated or habitual to sexual intercourse. The bench also added that the test was based on an 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,” the court said and observed that it was ‘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 court also said that Section 53A of the Evidence Act states that evidence of a person’s character or of her previous sexual experience shall not be relevant to the issue of consent or the quality of consent, in prosecutions of sexual offences.
“Although the ‘two-finger test’ in this case was conducted over a decade ago, it is a regrettable fact that it continues to be conducted even today,” the judges said.
Read: Two-finger test on rape survivors is banned — so why is it still performed?

‘Anyone conducting the test shall be guilty of misconduct’
The bench also issued three guidelines to the Union Government as well as the State Governments. The governments are directed 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
> 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 court also said that 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, against these directions shall be guilty of misconduct.

Case details
A man named Shailendra Kumar Rai alias Pandav Rai had committed the rape and immolated the 16-year-old, in 2004. However, she was rescued and admitted to the Sadar Hospital in Deoghar, where she later succumbed to the injuries.
A Sessions Court, in 2006, sentenced Pandav Rai to rigorous imprisonment for life, as well as rigorous imprisonment for 10 years, both of which were directed to run concurrently. He was convicted under sections 302 (punishment for murder), 341 (punishment for wrongful restraint), 376 (punishment for rape) and 448 (punishment for house-trespass) of the Indian Penal Code (IPC). 
While passing the order, the court had observed that testimony by a doctor (Dr Minu Mukherjee, who was a member of the Medical Board constituted to examine the survivor) testimony that no signs of rape was found and that ‘vaginal examination revealed that two fingers were admitted easily’ does not conclusively answer the question of whether the respondent raped the deceased. “Opinions of medical officers will not discredit witnesses of fact,” the sessions court had said.
However, hearing the appeal filed by Pandav Rai, the Jharkhand HC set aside the judgment of the Sessions Court and acquitted him. One of the reasons for the acquittal was stated as that “Dr Minu Mukherjee did not find any sign of sexual intercourse when she examined the victim”. Another important reason was that several witnesses, including the family members, turned hostile.
After hearing both the parties, the apex court set aside the HC judgement stating that the dying declaration made by the survivor was voluntarily and is true. The Supreme Court also made other important observations while passing the judgement.
Pointing out to the counsel of Pandav Rai who argued that the Medical Board did not find any evidence of rape, the court observed that the report prepared by the Medical Board stated that the possibility of intercourse could not be ruled out although no definite opinion could be given in this regard. “A lack of medical evidence as to the commission of rape cannot be taken to mean that no rape was committed upon the deceased. Her dying declaration unequivocally states that the respondent raped her before setting her on fire and there is no rule mandating the corroboration of the dying declaration through medical or other evidence, when the dying declaration is not otherwise suspicious,” the court said.
Regarding witnesses, including the family members of the deceased, turning hostile, the court said that “Testifying as to the circumstances surrounding the rape and death of a loved one can be a deeply traumatizing event, which is only compounded by the slow pace of the criminal justice system”, and added that it cannot be fatal to the prosecution’s case.
Also Read: ‘Conversion therapy’ for LGBTQIA+ persons declared professional misconduct
While setting aside the HC order and convicting Pandav Rai of the offences, the court said that while it does not ordinarily interfere with orders of acquittal passed by High Courts, it may exercise its power to do complete justice and reverse orders of acquittal to ‘avert a miscarriage of justice’.