The Supreme Court of India mandated a ban on the ‘two-finger test’ in rape cases in Meghalaya. This test, which involves a physical examination of rape survivors, has been criticized for being unscientific and violating women’s dignity. The court emphasized that the test re-traumatizes survivors and has no forensic value.
New Delhi: The Supreme Court expressed its disappointment regarding the use of the ‘two-finger test’ in a rape case, despite the fact that the apex court already deprecated this practice.
The bench, comprising of Justice Rajesh Bindal and Justice CT Ravikumar, took a strong stance against the controversial ‘two-finger test’ and instructed the Meghalaya government to take necessary measures to eliminate this harmful practice. During the proceedings, the SC referred to the judgment in the case of Lillu Alias Rajesh and Anr. vs. State of Haryana, which clearly states that the ‘two-finger test’ violates the privacy of rape victims.
In a landmark ruling, Chief Justice Chandrachud denounced the ‘two-finger test,’ emphasizing its long-standing criticism and lack of scientific validity. He reaffirmed that the presence of a hymen does not signify virginity and highlighted the complete inappropriateness of such tests. Justices Ravikumar and Rajesh Bindal examining an appeal in which the high court had convicted a person of rape.
The bench also acknowledged that the decision in the Lillu case, made prior to the occurrence of the current incident.
The court stated,
“It is true that the incident in the present case took place a decade ago, specifically on 26.10.2013. Therefore, this case highlights the persistent and defiant conduct of conducting the ‘two-finger test’ even after the decision of this Court in Lillu Alias Rajesh and Anr. v. State of Haryana.”
The Supreme Court bench hearing an appeal against the decision of the High Court that had affirmed the conviction of an accused for the offense of rape. During the proceedings, the court highlighted a concerning practice that continues to persist despite its prohibition the “two-finger test” used to determine whether a victim of rape, habituated to sexual intercourse. The court strongly deprecated this test, recognizing it as a regressive and invasive practice.
The court then questioned the learned counsel for the state about the steps taken to eradicate this harmful practice, in light of the various previous decisions of the Supreme Court on this matter. In response, the learned Advocate General of the State of Meghalaya, Shri Amit Kumar, submitted that in compliance with the court’s decision in the case of “State of Jharkhand vs. Shailendra Kumar Rai @ Pandav Rai,” appropriate action had been taken to eradicate this evil practice.
In the Shailendra Kumar Rai case, the Supreme Court reiterated the prohibition of the “two-finger test” in rape cases and warned that any violation of the directions issued by the court would be treated as misconduct, leading to appropriate disciplinary action.
The court’s emphasis on eradicating the “two-finger test” and the state’s assurance of taking appropriate action to comply with the court’s previous rulings highlight the ongoing efforts to eliminate this regressive and harmful practice from the criminal justice system.
The “two-finger test” is a highly controversial and unethical medical practice where two fingers are inserted into a rape victim’s vagina to determine if they are sexually active. This test has been widely criticized for violating the privacy and dignity of women, as well as being scientifically baseless. The medical consensus is that the presence or absence of a hymen is not a reliable indicator of a woman’s sexual history. Nevertheless, some states have continued to perform this test despite it being banned by India’s top court in 2013.
In 2014, the Ministry of Health issued guidelines declaring the two-finger test illegal. In 2022, the Supreme Court again strongly condemned the practice, stating it lacks any scientific foundation and wholly inappropriate. Most recently, in May 2023, a high court hearing a case under the POCSO Act mandated that forensic examinations of rape victims must only be conducted with the victim’s consent. This is an important step in protecting the rights and dignity of survivors.
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Overall, the continued use of the two-finger test despite legal bans highlights the need for greater enforcement and education to ensure harmful, unethical, and scientifically baseless practices are eliminated from the medical system. The focus should be on providing respectful, trauma-informed care for survivors of sexual violence.
The Supreme court also instructed the state to guarantee a comprehensive prohibition on a practice that lacks scientific basis and is not permitted by law. In a recent session, the court conveyed its concern that despite being banned, the test continues to be employed in rape cases.