The Supreme
Court on Monday deprecated the "regressive" and "invasive"
practice of the 'two-finger test' on rape survivors and said it has no
scientific basis and instead re-victimises women who may have been sexually
assaulted, and is an affront to their dignity.
The 'two-finger test' is conducted on victims of
sexual assault and rape to determine whether they are habituated to sexual
intercourse.
The top court said 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.
It said 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.
A bench of Justices D Y Chandrachud and Hima Kohli
made the remarks in a judgement on a plea of the Jharkhand government in which
it challenged the acquittal of one Shailendra Kumar Rai alias Pandav Rai of rape
and murder charges.
The top court overturned the decision of the High
Court and upheld the trial court order holding Rai guilty of rape and murder
and awarded him life sentence.
"We therefore set aside the High Court's decision
dated January 27, 2018 and restore the Sessions Court's judgment dated October
10, 2006 convicting the respondent of offences punishable under Sections 302,
341, 376 and 448 of the IPC, as well as its order dated October 11, 2006
sentencing the respondent (Rai) to rigorous imprisonment for life for the
offence punishable under Section 302 of the IPC and rigorous imprisonment for
10 years for the offence punishable under Section 376 of the IPC.
"These sentences are to run concurrently. The
respondent shall be taken into custody to serve the sentence immediately,"
the bench said.
The bench noted that while examining the victim, the
medical board of the Sadar hospital at Deoghar in Jharkhand conducted the
two-finger test to determine whether she was habituated to sexual intercourse.
"This court has time and again deprecated the use
of this regressive and invasive test in cases alleging rape and sexual assault.
This so-called test 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. The
two-finger test or per vaginum test must not be conducted," it noted.
The bench referred to its 2013 verdict in Lillu versus
State of Haryana, where it was held that the test violates the right to
privacy, integrity, and dignity of a woman.
"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 bench said in its parting remark
of the verdict.
The bench added 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 (rape) are present in a particular case.
The so-called test is based on the incorrect
assumption that a sexually active woman cannot be raped, it said.
The bench said the legislature explicitly recognised
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," the bench added.
It said the Ministry of Health and Family Welfare had
issued guidelines on March 19, 2014, for health providers in cases of sexual
violence -- Medico-legal care for survivors/victims of sexual violence -- which
proscribe the application of the two-finger test.
It issued a slew of directions to the Centre and 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," the bench said.
It directed that a copy of this judgment shall be
shared with the secretary, Union Ministry of Health and Family Welfare and he
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 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," the
bench added.