Supreme Court: In an unfortunate case, where a sexual assault survivor was subjected to “twin-finger” test by the Medical Board, the bench of Dr. DY Chandrachud* and Hima Kohli, JJ has held that the “two-finger test” or pre vaginum test must not be conducted as it has no scientific basis and neither proves nor disproves allegations of rape. It instead re-victimizes and re-traumatizes women who may have been sexually assaulted, and is an affront to their dignity.
Why the “two-finger” test is banned?
Explaining that the so-called test is based on the incorrect assumption that a sexually active woman cannot be raped, the Court observed that whether a woman is “habituated to sexual intercourse” or “habitual to sexual intercourse” is irrelevant for the purposes of determining whether the ingredients of Section 375 of the IPC are present in a particular case.
“Nothing could be further from the truth – a woman’s sexual history is wholly immaterial while adjudicating whether the accused raped her. Further, the probative value of a woman’s testimony does not depend upon her sexual history. 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 Court went on to highlight the express recognition of this fact in law as under 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.
Though the Court has banned the “two-finger” test in a series of judgments, the case at hand prompted it to pass specific directions for the Union Government as well as the State Governments 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; and
- 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.
These directions are to be communicated to the Principal Secretary (Department of Public Health) of each state who will ensure that these directions are implemented.
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.
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.
[State of Jharkhand v. Shailendra Kumar Rai, 2022 SCC OnLine SC 1494, decided on 31.10.2022]