Rape cases: Gujarat HC holds ‘two-finger test’ unconstitutional, violative of victim’s right to privacy

Photograph used for representative purposes only

Photograph used for representative purposes only   | Photo Credit: PTI

In a strongly worded verdict, the Division Bench held that the practice was ‘outdated and archaic’ and directed that it be discontinued immediately.

A Division Bench of the Gujarat High Court has observed that the “archaic and outdated” practice of the “two-finger test”, conducted to determine the virginity/consent of a rape victim, is unconstitutional and directed that it be discontinued immediately.

The court has also directed the trial courts in the State that in cases related to rape and sexual assaults, if they come across any medical certificate or any reference to such a test, the courts must take cognisance of the same and should initiate actions.

In a strongly worded verdict, the Bench held that such “outdated and archaic” practice was violative of the victim’s rights of privacy, physical and mental integrity and dignity.

“Our endeavour is to remind the trial courts as well as the medical fraternity that the ‘two-finger test’ is unconstitutional, as it violates the right of the victim of sexual assault to privacy, physical and mental integrity and dignity. If the trial court comes across any such medical certificate, wherein, there is a reference of such test, then it should take cognisance of the same and do the needful in the matter.”

The Bench of Justices J.B. Pardiwala and Bhargav D. Karia said the test was in direct conflict with the proviso to Section 146 of the Indian Evidence Act, which stipulated that “in prosecution for rape or attempt to commit rape, it shall not be permissible to put questions in the cross-examination of the prosecutrix as to her general immoral character.”

“Despite the aforesaid proviso, the ‘two-finger test’ leading to the formation of the medical opinion regarding consent allows the past sexual history of the victim to cause prejudice to her testimony,” the Bench observed.

The test itself was one of the most unscientific methods of examination used in the context of sexual assault and had no forensic value, it said.

“Whether a survivor is habituated to sexual intercourse prior to the assault has absolutely no bearing on whether she consented when the rape occurred. Section 155 of the Indian Evidence Act, does not allow a rape victim’s credibility to be compromised on the ground that she is of generally immoral character.”

25-year-old case

The Bench delivered the verdict in a 25-year-old case in which the trial court realised its mistake in calculating the age of the victim at a very late stage. The court had recorded that the victim was above 16 years of age and hence, it went on to determine her consent by way of the ‘two-finger test’.

However, after the verdict was pronounced by the trial court, acquitting the accused, the trial court judge realised that the victim was a minor, and not an adult as her age was miscalculated.

Erroneous acquittal

Having realised the mistake it committed, the trial court found itself in a tricky situation where it had no powers to review its own judgment in which it had erroneously acquitted the person accused of sexual offence.

Hence, a petition was filed in the High Court challenging the trial court order acquitting the accused.

Acting on the petition filed by the State, the High Court not only corrected the mistake committed by the trial court 25 years after the order of acquittal was passed but also held the accused guilty of rape and directed the accused to personally remain present before the Division Bench on January 31, when it is likely to sentence him.

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Printable version | Feb 21, 2020 3:38:57 PM |

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