ABSTRACT – In recent times, the feminist movement is in full force and people have become much more educated about the need for better ways to provide speedy justice to the Rape victims. Yet, the people at the top of the nation (mostly men) have undertones of misogyny, patriarchy, and casual sexism, making it difficult to achieve that dream. The conservative mindset of people who believe that a women is equally in wrong for her rape as a man which makes it difficult to implement laws that are provided to these victims. Only the judiciary has taken some stringent measures from time to time to lay down the landmark judgments. For example, in Nirbhaya case – After this incident, JS Verma, the former Chief Justice of India, headed a panel that was formed to study the criminal laws in the country and suggest possible amendments to enhance the punishment for sexual assault and Indian Rape Laws.[1] But even after all that it has failed to remove “The Two finger Test”, which involves a medical practitioner inserting two fingers into a woman’s vagina to assess the laxity of the vaginal muscle and examine the hymen. This is horrific because the victim, who has been subjected to sexual assault, suffers yet again so that the court can determine if she had intercourse in recent period of time. The test determines if the victim is of “loose character” based on the fact that she is sexually active, ultimately resulting in discrediting her testimony based on the assumption that a woman with a sexual history cannot claim to be raped.
KEYWORDS – Rape, Integrity of rape victims, Two finger test, Judiciary, Judicial Activism
INTRODUCTION -The topic is relevant because of a recent judgement of The Supreme Court of India Bench of CJI D.Y. Chandrachud and Justice Hima Kohli in which it reiterated the ban of the two-finger test.
This unscientific and horrifying two-finger test is still being used to determine the sexual past and to collect information about the condition of the hymen of a woman. Research, however, shows that an intact hymen doesn’t rule out sexual assault and a torn hymen doesn’t mean absence of sexual intercourse in the past. This debate started with the Justice Verma Committee, and grew ever since. The committee in its report states that- “It is crucial to underscore that the size of the vaginal introitus has no bearing on a case of sexual assault, and therefore a test to ascertain the laxity of the vaginal muscles which is commonly referred to as the two-finger test must not be conducted. Based on this test observations/ conclusions such as ‘habituated to sexual intercourse’ should not be made and this is forbidden by law.” The SC later declared the two-finger test unconstitutional in 2013, stating that the test “violates the right of rape survivors to privacy, physical and mental integrity and dignity.”[2]
Inserting fingers in the vagina to determine if someone is raped is like raping them all over again and should be done away with. The test was also done on married women and even Pregnant women, for whom virginity and habituation should not be [3]contested. It was also followed by countries like Britain before 1979 for medical examinations of immigrant women who came to marry their fiancees. However, this research focuses mainly on the test in the Indian context. It also focuses on the steps taken by the authorities, what situations made it possible for it to sustain for so long and what suggestions should be implemented to overcome this unfortunate norm.
If the rape victim refuses to consent to the “two-finger test” during the medical examination and the doctor still performs the test on her, the doctor’s actions would constitute rape under section 375(d) of the IPC, which states that inserting any object or part of the body other than the penis without the subject’s consent or against his or her will constitutes an offence of rape.
Therefore, a rape victim who was subjected to a test without consent may file a FIR against the doctor, accusing him of violating section 375(d) of the IPC.[4]
RESEARCH METHODOLOGY – This paper is descriptive in nature and the research is based on the various judgements by the Indian courts as well as various articles and research papers. It captures the reader’s thoughts that came into being after reading the materials available on the internet.
REVIEW OF LITERATURE – All the sources reviewed for the purpose of the research, as expected, criticised the practice and demanded that it should be put an end to. The pieces of literature featured various judgements and justified their stance on why this practice should come to an end. Most of these sources include newspaper reports, articles and various research papers on the issue.
To understand why we must take initiatives against this practice, we must first need to understand rape, the plight of rape victims and how degrading it is to put a survivor through this test just to verify the same.
RAPE – A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:—
— Against her will.
—Without her consent.
— With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
—With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
— With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
— With or without her consent, when she is under sixteen years of age. Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.[5]
The prosecution must show that penetration took place without the woman’s consent in order to convict a man of rape. Thus, establishing lack of consent is frequently the key factor in rape cases. Prosecutors must rely on the testimony of the victim and any other pertinent evidence to demonstrate that the woman had not agreed to penetration because there are typically no witnesses to the act of rape.
It was also stated that, if a woman is not resisting sexual activity, then it does not mean that she is giving consent. Which is important because if there is no resistance, the evidence such as injuries near private parts or on the body are immaterial. There were also laws made to curb marital rape which may include rape without resistence.
Therefore, as we can see, rape is an heinous act, which makes it a more serious crime that murder. According to Justice Krishna Iyer, A murderer kills the body whereas a rapist kills the soul. ( Rafiq Vs State of U.P.)[6]. This explains the gravity of the need to develop measures for the protection of the victims from the aftermath of the incident, be it physical or mental. In another case of State of Punjab v. Ramdev Singh[7], court dealt with the issue and held that rape is violative of victim’s fundamental right under Article 21 of the Constitution. So, the courts should deal with such cases sternly and severely. Sexual violence, apart from being a dehumanizing act, is an unlawful intrusion on the right of privacy and sanctity of a woman. It is a serious blow to her supreme honour and offends her self-esteem and dignity as well. It degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries, but leaves behind a scar on the most cherished position of a woman, i.e. her dignity, honour, reputation and chastity. Rape is not only an offence against the person of a woman, rather a crime against the entire society. It is a crime against basic human rights and also violates the most cherished fundamental right guaranteed under Article 21 of the Constitution. Article 21 of the constitution says that – No person shall be deprived of his life or personal liberty except according to procedure established by law
We can now understand why on a moral and ethical level, the test is a clear violation of privacy and dignity, where the woman is subjected to the pain of insertion even after going through a horrific experience. She is stripped of her consent.
DEVELOPMENTS MADE OVER TIME AGAINST THE TEST
- In Narayanamma (Kum) v. State of Karnataka & Ors., (1994)[8], Supreme Court held that the “fact of admission of two fingers and the hymen rupture does not give a clear indication that prosecutrix is habitual to sexual intercourse. The doctor has to opine as to whether the hymen stood ruptured much earlier or carried an old tear.
The factum of admission of two fingers could not be held adverse to the prosecutrix, as it would also depend upon the size of the fingers inserted. The doctor must give his clear opinion as to whether it was painful and bleeding on touch, for the reason that such conditions obviously relate to the hymen.”
- State of Uttar Pradesh v. Munshi (2004)[9], has expressed its anguish and held that “even if the victim of rape was previously accustomed to sexual intercourse, it cannot be the determinative question. On the contrary, the question still remains as to whether the accused committed rape on the victim on the occasion complained of. Even if the victim had lost her virginity earlier, it can certainly not give a licence to any person to rape her. It is the accused who was on trial and not the victim. So as to whether the victim is of a promiscuous character is totally an irrelevant issue altogether in a case of rape. Even a woman of easy virtue has a right to refuse to submit herself to sexual intercourse to anyone and everyone, because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. A prosecutrix stands on a higher pedestal than an injured witness for the reason that an injured witness gets the injury on the physical form, while the prosecutrix suffers psychologically and emotionally.”
- Lilu Rajesh and Anr v. State of Haryana (2013)[10] – Dr. Malti Gupta, who had examined Raj Bala, prosecutrix, had deposed that there was no external mark of injury on any part of her body. The possibility of prosecutrix being habitual to sexual intercourse could not be ruled out. There was no bleeding. Thus, in such a fact-situation, the statement of the prosecutrix that she was unmarried and had never indulged in sexual activity with any person, or was below 16 years, could not be relied upon.
In fact, much has been argued by Mr. J.P. Singh on the two fingers test. Admitting very fairly that in case she was a minor, the question as to whether she had been habitual to sexual activities or not, is immaterial to determine the issue of consent.So far as the two finger test is concerned, it requires a serious consideration by the court as there is a demand for sound standard of conducting and interpreting forensic examination of rape survivors.
- State of Jharkhand vs Shailendra Kumar Rai (2022)[11] – The medical examiner, Dr. Minu Mukherjeestated that the “deceased may have engaged in intercourse prior to the date of the alleged crime, and that the admission of two fingers in her vagina meant that 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 pre vaginum test must not be conducted.
The so-called test is based on the incorrect assumption that a sexually active woman cannot be raped. 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.” Although the “two-finger test” in this case was conducted over a decade ago, it is a regrettable fact that it continues to be conducted even today.
The Supreme Court also gave some directions to the Government in this case –
- Ensuring that all public and private hospitals receive the guidelines created by the Ministry of Health and Family Welfare;
- Hold workshops for medical professionals to explain the proper approach to take when assessing victims of sexual assault and rape; and
- To ensure that the “two-finger test” or per vaginum examination is not one of the methods to be used while assessing survivors of sexual assault and rape, review the curriculum in medical schools.
Thus, in view of the above cases, undoubtedly, the two finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity. Thus, this test, even if the report is affirmative, cannot Ipso facto, be given rise to presumption of consent.
METHODS – In this research, Rape as a crime is examined by looking at various judgements from the courts and the plight of the victims is acknowleged, which is often overlooked.
Many sources were referred to while doing the research so that an unbiased view and conclusion is reached. Since it is an issue which is less talked about, the research had to be conducted only from the available sources such as newspaper articles, papers and court judgements. Most of the review of literature part therefore contains the facts of the major judgements of the supreme court on the issue and what the court decided based on the same. After a thorough study of the materials available, some suggestions are given and a conclusion to the research is reached.
SUGGESTIONS – The first and foremost thing is to change the mindset of the people, the medical staff’s job is to perform the test that court orders them to do. It is upon the judges and the lawyers to step up and make it so that these evidences don’t become permissible in the court. Until and unless the judges do not support the idea that a sexually active women can also be raped, there can be no course of action that can be taken to put an end to this practice.
Secondly, it is also important to sensitise the medical department to the topic so that these medical experts can stand against the practice and use their medical expertise to debunk the belief that the two finger test is actually effective in collecting evidence that can prove to be fruitful.
Lastly, Penal action and deterrence measures should be taken against the people engaging in these practices so that it can be discouraged and victims of rape have to suffer less from the patriarchial mindset of the society.
CONCLUSION – It is regrettable that it took the passing of a little girl for the media and other organisations to become aware of this heinous deed. Obviously, there were a lot of individuals and organisations that were against this practise even before the rape case in December. Our country decided it had had enough of women’s brutality and crime after the December rape case. The nation’s youth united, New Year’s Eve celebrations were postponed, and media outlets held all those conversations and debates. Slowly, everything was forgotten, and the girl was reduced to the status of a victim, with her complaints devolving into desperate acts.
No rape victim should be forced to submit to the two fingers test in order to support their allegation of rape because it is an unscientific and inhumane procedure. According to medical professionals and social workers, the victim has been re-raped. It not only infringes on the victim’s right to privacy, but also has an adverse effect on her moral, physical, and mental health. Even prepubescent females who are too young to understand what is happening to them are subjected to the two-finger test. The government should create modified legislation that is to be consistently implemented throughout the nation and outright forbid such a test. The victim should be placed in a relaxed setting to encourage speaking up. When addressing gender-based violence, medical procedures should not be performed in a way that is harsh, inhumane, or degrading. Additionally, health should always come first. The DNA test, for instance, can be used to find the evidence in a rape case as an alternative to the two finger test. Many survivors may be unsure of what to anticipate if they report the crime and are sent for a medical evaluation, in addition to dealing with the trauma of the sexual assault itself. Dr. Jayashree adds that a fundamental medical checkup would involve taking swabs of the patient’s mouth and body and noting any injuries,“Based on the person’s complaint, we have to specifically check if there are any wounds or scars. But the most important thing is that we should make the patient comfortable and get maximum evidence possible with no distress to the survivor. Simply put, we have to treat a person’s private parts and injuries the way we treat any other injury. Collection of samples is necessary because we need evidence,” she says. These types of tests are actually more ideal than an irrational test like the two finger test.
Rishabh Jodha
Rajiv Gandhi National University Of Law, Punjab
[1] LAW INSIDER,https://www.lawinsider.in/columns/landmark-judgements-that-shaped-the-rape-laws-in-india (Last visited June 11,2023)
[2] OUTLOOK, https://www.outlookindia.com/national/explained-what-is-two-finger-test-on-rape-survivors-and-why-has-sc-banned-the-unscientific-practice-news-234114 , (Last visited June 10 2023)
[3] SAYFTY, https://sayfty.com/do-you-know-about-the-two-finger-test/ , (Last visited June 10 2023)
[4] THE NEWS MINUTE, https://www.outlookindia.com/national/explained-what-is-two-finger-test-on-rape-survivors-and-why-has-sc-banned-the-unscientific-practice-news-234114 (Last visited June 10 2023)
[5] INDIAN KANOON, https://indiankanoon.org/doc/623254/ (Last visited June 10 2023)
[6] Rafiq Vs State of U.P., AIR 2011 SC 3114
[7] State of Punjab v. Ramdev Singh, AIR 2004 SC 1290
[8] Narayanamma (Kum) v. State of Karnataka & Ors., (1994) 5 SCC 728
[9] State of Uttar Pradesh v. Munshi, AIR 2009 SC 370,
[10] Lilu Rajesh and Anr v. State of Haryana, (2013) 14 SCC 643
[11] State of Jharkhand V. Shailendra Kumar Rai (2022 Scc Online Sc 1494)
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