Indian Supreme Court Imposes a Ban on the Infamous Two-Finger Test

Introduction The Apex Court of India recently in the State of Jharkhand v. Shailendra Rai @Pandav Rai banned the two-finger test which was conducted on the rape survivors stating its retraumatising and revictimizing nature. While this is a progressive move marching towards a more thoughtful forensic routine, its implementation has been in question for quite some time. The courts of the country have been criticizing the practice for more than a decade by declaring it unconstitutional, however all of this fell on deaf ears and is still being contended within the four walls of the Indian courtrooms.

Failure in Law Enforcement The two-finger test is in contravention of the Right to Privacy and Body autonomy which now come under the ambit of Article 21 of the Indian Constitution. The Central Information Commission has repeatedly asked the state governments to make public whether the test has been discontinued. However it is evident that the test is still being performed when the Madhya Pradesh High Court recently relied on it to set aside a bail order, observing that “although the medical report of the Prosecutrix did not mention any definite opinion of rape, it pointed out that her hymen was ruptured, and two fingers were easily going in her vagina.” The Supreme Court had declared the test unconstitutional way back in 2013 in the Lillu @ Rajesh case, however, the enforcement machinery of the country was still unable to implement guidelines regarding the same. Although the Indian Council of Medical Research banned the test in 2014, a study by Human Rights Watch (HRW) found that the test was still being carried out at hospitals across the country. The 2014 guidelines regarded therapeutic care as an essential however, it was found that doctors frequently gave priority to the collection of forensic evidence by way of conducting the two-finger test while neglecting the essential of therapeutic care which was not in consonance with the guidelines. This not only points out failure in the enforcement machinery but also raises questions on procedural updates and precedential practices in the country.

International outlook India is a party to the International Covenant on Economic, Social and Cultural Rights which under Article 5(2) states that there should be no derogation from the fundamental human rights. However, this test is in violation of these rights because it violates the physical and/or mental integrity and dignity of the survivors. According to Article 5(a) of Convention on the Elimination of All Forms of Discrimination Against Women, the State parties are supposed to eliminate prejudices and customary practices that are stereotypical in nature. However, the origin and implementation of the two-finger test is based on the stereotype that women aren’t supposed to indulge in sexual intercourse till a certain stage of their lives. Furthermore paragraph 6(d) of the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985 mentions that measures should be taken which minimize inconvenience to victims and protects their privacy in addition to Article 3 of the Universal Declaration of Human Rights which guarantees the right to life. The aforementioned test is not in consonance with these international instruments because it re-traumatizes the victims by constituting degrading treatment to their health and infringes their rights as legally and scientifically the test cannot give rise to the presumption of consent by the victim. This test has also been carried out on minor rape victims which is in contravention of Article 24(3) of the Convention on the Rights of the Child 1989 which provides for the abolishment of traditional practices which are prejudicial to the health of children.

Conclusion The constitutional machineries must ensure that the per-vaginum examination is not conducted by the medical professionals when examining victims and survivors of sexual assault as it has already been rendered unconstitutional by the Supreme Court in 2013. The prohibition of this test by the Supreme Court for the second time is a welcome judgment because it aims at ensuring that the guidelines formulated by the Ministry of Health and Family Welfare are adhered to by all government and private hospitals. Additionally, the Supreme Court has directed the Central and State governments to conduct workshops for health providers to adopt the appropriate procedures and review the curriculum in medical schools. The court has also observed that a person conducting this test shall be guilty of misconduct which can act as a means to decrease the infliction of this traumatization and infringement of human rights on the rape survivors.

Anushkaa Bajpai and Yash Bhatnagar are both undergraduate law students at Dr. Ram Manohar Lohiya National Law University, India.