The Supreme Court on October 31 declared that any person conducting the invasive ‘two-finger’ or ‘three-finger’ vaginal test on rape or sexual assault survivors will be found guilty of misconduct.
In a judgment, a Bench led by Justice D.Y. Chandrachud said the sole reason behind using the “regressive” test on traumatised sexual assault survivors is to see whether the woman or girl was “habituated” to sexual intercourse.
Such a “concern” was irrelevant to fact whether she was raped or not.
“Previous sexual experience is immaterial to the question of conduct,” Justice Chandrachud, who authored the verdict, held.
The faulty logic behind the test was that “a woman cannot be believed when she said she was raped merely for the reason that she was sexually active”, the court said.
“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 ‘two-finger’ test or pre-vaginum test must not be conducted,” the Bench, also comprising Justice Hima Kohli, directed.
The court said the legislature had amended the criminal law in 2013 to introduce Section 53A in the Indian Evidence Act.
“In terms of Section 53A, the evidence of a victim’s character or her previous sexual experience with any person shall not be relevant to the issue of consent or the quality of consent in the prosecution of sexual offences,” the court held.
The Bench noted that the Ministry of Health and Family Welfare had issued guidelines for health providers in cases of sexual violence.
“These guidelines have proscribed the application of the two-finger test,” the judgment noted.
In the present case, the two-finger test was conducted a decade ago.
“But it is regrettable that it [two-finger test] continues even today,” the court underscored.
The court directed the Centre and the State Governments to ensure that the Ministry’s guidelines were followed to the letter.
The court ordered that the guidelines be circulated to private and government hospitals.
It said workshops should be held for health providers to prevent the test from being conducted on rape survivors. The court said the curriculum in medical schools should be revised. It ordered copies of the judgment to be handed over to the Health Ministry, which should be circulated to the health and home departments of the States. The home departments should circulate the judgment to the Director Generals of Police in the States.
“Any person who conducts the two-finger test in sexual assault cases shall be guilty of misconduct,” the court ordered.