The Delhi High Court on Tuesday ruled that conducting a
"virginity test" on a female accused is unconstitutional, sexist and
in violation of the right to dignity.
The court observed that there is no legal procedure that provides
for a "virginity test" and such testing is a form of inhuman
treatment.
The order was passed by Justice Swarana Kanta Sharma on a plea
moved by Sister Sephy, who sought to declare the conduct of a "virginity
test" on her in connection with a criminal case over a nun's death in
Kerala in 1992 as unconstitutional.
"It is declared that the virginity test conducted on a female
detainee, accused under investigation, or in custody, whether judicial or
police, is unconstitutional and in violation of Article 21 of the Constitution,
which includes right to dignity," Justice Sharma said.
"This court, therefore, holds that this test is sexist and in
violation of the human right to dignity even of a female accused if she is
subjected to such a test while being in custody," the judge said.
The court emphasised that the concept of "custodial
dignity" of a female includes her right to live with dignity even while in
police custody and conducting a virginity test on her not only amounts to
interference of the investigating agency with her bodily integrity, but also
with her psychological integrity.
"Strangely, though the word 'virginity' may not have a
definite scientific and medical definition, it has become a mark of purity of a
woman. The intrusive testing procedure, as has been held in several judgments
of the Hon'ble apex court, does not have a medical standing," the court
observed.
"It will be difficult for this court to hold, being guided by
the constitutional principles of fundamental rights, that a person in custody
of the authorities surrenders the right to bodily integrity and submits to
bodily intrusion for the prosecution to find evidence through its body.
"The feeling of being demeaned by such treatment in custody
by bodily invasion through conducting a virginity test also brings forth the
undesirable and abhorrent notion of differentiation on the basis of gender and
stereotypes," it said
The court also said the right to dignity is not suspended even
when a person is accused of committing an offence or arrested and the right to
life and personal liberty can be suspended only in accordance with the
procedure established by law, which must be just, fair and reasonable and not
arbitrary, fanciful and oppressive”
"The right to personal liberty of an accused gets suspended
the moment one is arrested as the same might be necessary for State security.
However, the right to dignity is not suspended or waived even of an accused,
undertrial or a convict," the court said.
The petitioner had alleged before the court that she was forcibly
subjected to undergo a "virginity test" in 2008 by the Central Bureau
of Investigation (CBI) under the pretext of an investigation to substantiate
the agency's case in relation to the nun's death in 1992 and the test results
were leaked.
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