Patriarchy and Virtue: Why is the outlawed practice of the Two Finger Test still in practice in India? SC overturns the Jharkhand HC judgment in a rape conviction, expresses concern over the use of the Two Finger Test as medical evidence

02, Nov 2022 | Tanya Arora

“This action made me nauseous enough to re-live the trauma of being raped.”

Since childhood, women in India have been taught that a family’s honour is attached to the virtue of the women and daughters of the family. For the numerical majority, girls are often regaled with of the story of Sita, wife of Ram who “willingly walked through fire”, gave an “Agni-Pariksha”, to prove her chastity after being “kidnapped” by another man. Another mythological character of Ahilya, has been often portrayed as a socially ostracized woman. Her fault was she had an intimate relationship with a man while her husband was away for years, praying to God. Even among Semitic minority communities “chastity and purity” are badges of honour to be closely held by women.

Thus, the ideal of the Indian woman as “pure”, is upheld by family and society, concepts challenged over decades by individual and collectives of women.

The purity-virginity taboo, which persisted during the colonial era and continues to this day- albeit in a somewhat modified form, gave birth to the two finger test. The Two Finger Test, often known as a vaginal examination, is used to determine whether the woman concerned has ever engaged in sexual activity prior to conducting of this test. This extremely regressive practice that has been protested and condemned by women rights’ activists for decades deserved to be shunned a long time ago, for not only being denigrating towards women but also because it further traumatised a survivor of sexual assault.

The test was outlawed by the Indian Supreme Court in 2013, but the Ministry of Health never made the statutory regulations public, therefore several regions of India have continued to routinely administer the test. In 2013, SC clearly stated that this so-called test violates the rights of rape survivors. The verdict followed the sexual assault amendments in 2013 that recognised other forms of penetration besides penile-vaginal as rape. It was post the much-protested Nirbhaya Delhi Rape Case (Mukesh v NCT of Delhi), this, the Justice Verma Committee was constituted to recommend legal changes into the laws related to sexual assault against women. The amendments made a woman’s sexual experience irrelevant in determining the issue of consent. Besides, one of the major recommendations made by Committee was that the Ministry of Health should create standards for medical professionals assessing survivors.

It has therefore been close to a decade (nine years) since this unscientific and intrusive practice of two finger test has been outlawed. Yet this offensive practice persists. Even specific guidelines have been made for medical professionals to follow in cases of sexual offences against women. Despite this ban, numerous cases have been found where rape survivors have been subjected to the two-finger test. Even today, the Supreme Court of India has to examine cases, and adjudicate on the invasive test whenever still used/applied. Minor girls too continue to face this test, often also dubbed the virginity test.

In October 2014, the Union health ministry, issued guidelines stipulating the ‘test’ should simply not be conducted as “it had no bearing on a case of sexual violence.” The guidelines also barred doctors’ comments on “past sexual experience or habituation to sexual intercourse.” However, many states have simply not implemented the 2014 Guidelines. Two states, Gujarat High Court (State of Gujarat v. RameshchandraRambhai Panchal, R/Cri Appeal No. 122 of 1996) in 2020 and Madras High Court (Rajivgandhi v. The State, 1770 : (2022) 3 Mad LJ (Cri) 265) in early 2022 have severely criticised its continued use.

The order of the Gujarat HC can be read here:

 

The order of the Madras HC can be read here:

 

On October 31, 2022 the Supreme Court ruled that anyone who performs the “two-finger test” or per vaginum examination on a victim of an alleged sexual assault shall be considered to have engaged in unprofessional conduct. In this case, the SC bench of Justices D.Y. Chandrachud and Hima Kohli overturned the impugned Jharkhand high court’s decision and found the respondent guilty of rape and murder under the Indian Penal Code (IPC). The fact that even today, in 2022, 29 years after the test was banned, a constitutional court thought fit to tolerate its use, is reflective of the vastly contradictory standards within India’s higher judiciary when it comes to the dignity of women.

The appeal, in this case, was filed challenging the order of the Jharkhand High Court that set aside the order of conviction and sentencing of the respondent to life imprisonment under Sections 302, 376, 341, and 448 of the IPC, passed by Additional Sessions Judge, FTC-II Deoghar. The respondent allegedly entered the victim’s home on November 7, 2004, raped on her, and threatened to murder her. The respondent doused the victim in kerosene and set her ablaze when she cried out for assistance. The station-in-charge at Sarwna Police Station documented the victim’s dying declaration on the same, wherein she described the offence that took place. On December 14, 2004, she passed away.

The victim was examined by the Medical Board, who used the “two-finger test” to see if she was accustomed to having sex, the Court noted. According to Section 375 of the IPC, it is irrelevant if a woman is “habituated to sexual intercourse,” and her past sexual behaviour is “wholly immaterial” when evaluating whether she was raped, the court noted. While restoring the conviction in a rape case, the division bench of the SC, expressed its displeasure that two finger tests were still being undertaken. The court strongly recommended against doing the examination, describing it as “regressive” and “intrusive” and lacking any scientific support for the claims of rape and sexual assault. The Bench remarked, “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 Supreme Court cited the judgment, given in the case of Lilly v. State of Haryana (2013), to support of ruling, which provided that the “two-finger test” violated the rights of rape survivors to “privacy, physical and mental integrity and dignity.” The Indian Evidence Act’s Section 53A, added by the Criminal Law (Amendment) Act of 2013, was also referenced to by the court. This section states that in sexual offense prosecutions, evidence of the victim’s character or her prior sexual experiences with anyone is not relevant to the question of consent or the quality of consent. It also made reference to instructions provided by the Ministry of Health and Financial Affairs for medical professionals in situations of sexual assault indicating that such a per vaginum examination must not be conducted for establishing rape or sexual assault.

“Evidence of a victim’s sexual history not material to case. It is regrettable that it continues to be conducted even today… The so called test has no scientific basis…it instead re-victimises and re-traumatizes women,” the top court stated on October 31. Most significantly it held that,

The legislature explicitly recognized 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. (Para 63)

The Court directed the Union and State Governments, expressing regret over the continued usage of the “two-finger test,” to distribute the Ministry of Health and Family Welfare’s guidelines to all public and private hospitals, hold workshops for healthcare professionals to clarify the proper procedure, and review the medical school curriculum to ensure that the “two-finger test” is no longer taught.

The court declared that anybody who undertakes the “two-finger test” or per vaginum examination (when evaluating a person believed to have been subjected to a sexual assault) in violation of the directives of this Court shall be guilty of misconduct. The court also stated, “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.”

Detailed directions by the SC are contained in Paras 66-68 of the October 31 judgement. These are:

“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. (Para 65)

“We direct the Union Government as well as the State Governments to: a. Ensure that the guidelines formulated by the Ministry of Health and Family Welfare are circulated to all government and private hospitals; b. Conduct workshops for health providers to communicate the appropriate procedure to be adopted while examining survivors of sexual assault and rape; and c. 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. (Para 66)

“A copy of this judgment shall be shared with the Secretary, Ministry of Health and Family Welfare, Government of India. The Secretary, Ministry of Health and Family Welfare, Government of India 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 Part E of 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.(Para 67).

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.(Para 68)

The order can be read here.

 

On paper, India’s jurisprudence around gender justice are occasionally even more progressive than those of so-called industrialised nations, but when it comes to implementation, everything is for nothing. A report by Human Rights Watch was released in the year 2010, which highlighted the widespread use of this practice. It described this test as “unscientific, inhuman and degrading” and a second assault on traumatized women, and raised concerns about the Indian courts bringing views of rape victims’ general moral character into their rulings.

India is a signatory of many international covenants, such as the International Covenant on Economic, Social, and Cultural Rights of 1966 and the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power of 1985. India is under the obligation to ensure that ape victims have a right to legal action that does not traumatize them or infringe on their physical or mental integrity and dignity. They also have the right to medical procedures that respect their right to consent. When dealing with gender-based violence, health should always come first and medical procedures shouldn’t be performed in a way that is cruel, inhuman, or demeaning to others. To provide these assistance to victims of sexual assault is a duty on the part of the State. To protect their safety, appropriate steps should be taken, and there should be no arbitrary or unlawful interference with their privacy. This “archaic and outdated” practice of two-finger test, conducted to determine the virginity/consent of a rape victim, is violative of the right of the victim to privacy, physical and mental integrity and dignity.

Medico-legal authorities, such as doctors and police officers, usually obstruct the victim’s path to justice because they are uninformed about the complexities of sexual abuse. In the year 2019, a woman at the Indian Air Force College at Redfields, Coimbatore, accused a colleague of raping her. She also alleged that medical staff at the academy had subjected her to the “two-finger test,” which was regarded as an illegal, preliminary examination of rape victims to determine sexual assault. Along with the employment of this prohibited approach, the aforementioned incident also demonstrated the necessity for empathy and sensitization while handling incidents of sexual assault. For instance, the survivor claims in her FIR that the officer who presided over her complaint was consistently “rude.” The officer allegedly attempted to get the complainant’s friend to sign the statement withdrawing the complaint.^[1]

This obstacle has far-reaching implications as when survivors do decide to report, law enforcers run the risk of further traumatising and disempowering them due to their insensitivity and lack of knowledge. In order to protect women from assault, patriarchy must be defeated, and efforts to address the worldwide and Indian rape problem must be based on education and sensitization. It is people who create institutions and mouldsociety, after all.

It is necessary to create an environment where justice can prevail beyond the boundaries of rights, where rape has nothing to do with a woman’s habit of engaging in sexual activity, where women protest for an egalitarian world, where such sexist ideas can be replaced, and where research can be conducted in a useful manner. The two-finger test is just one illustration of how a fledgling democracy has failed miserably to provide dignity in redressal for women and other members of the gender; it is only through the widespread application of laws and rules that ban such arcane and offensive practices, that gender discrimination can be arrested especially after a violent assault has taken place.

States and even the Centre has often failed in both disseminating and implementing what the constitutional courts, especially the Supreme Court has turned unlawful. Many medical practitioners and doctors are similarly either uninformed or unmindful of such seminal judgements that affect real lives and ensure good practices. A real challenge for India’s apex court is to ensure that it’s directives, be it on this practice or torture or custodial death are actually implemented within police stations, hospitals and even lower courts.

Related:

Accused under POSCO granted bail on condition of marriage to victim: Allahabad HC
Kerala HC: “Even if a woman wears a ‘provocative dress’ that cannot give a licence to a man to outrage her modesty”
BREAKING: SC stays Bombay HC’s controversial POCSO judgment
Groping minor without physical contact, not sexual assault under POCSO Act: Bombay HC
National commissions for women and child rights decry Bom HC POCSO judgment

 

^[1] IAF rape case survivor subjected to two-finger test: Why such practices and a lack of empathy add to trauma (firstpost.com)