The Supreme Court on Tuesday imposed a ban on the two-finger test in a rape case, a move that will change the historical trajectory of rape convictions in India.
While restoring conviction in a rape-murder case, a bench of Justices DY Chandrachud and Hima Kohli said, "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."
The top court further directed that any person conducting such a test will be found guilty of misconduct.
However, this has not been the court’s first attempt to stop the two-finger test, denouncing the scientific invalidity of it. The Centre’s guidelines on examining victims of sexual assault also forbid it, but the practice continues.
What is a two-finger test?
A two-finger test involves a medical practitioner inserting two fingers into a woman’s vagina to assess the laxity of the vaginal muscle and examine the hymen.
A woman, who has been subjected to sexual assault, is put under the test to understand whether they had recent sexual intercourse. However, the process has been touted as unscientific and regressive, and such ‘information’ has no bearing on an allegation of rape.
A handbook released by the World Health Organization (WHO) on dealing with sexual assault victims says, “There is no place for virginity (or ‘two-finger’) testing; it has no scientific validity.”
Is the two-finger test scientifically accepted?
The test has no scientific backing, as proven by doctors. The test thrives on the archaic concept of a hymen determining whether a woman is sexually active or not. However, a hymen, which is a thin membrane of a vagina, can also rupture due to regular physical activities and exercises, and not necessarily because of sexual intercourse.
Moreover, in children, the hymen being so deep-rooted stays intact during penetration and sexual assault.
What is problematic with the test?
Doctors suggest that the laxity of the vaginal muscle also depends on the psychological state of a person. For example, in the case of a distressed person, like a rape survivor, the muscle will appear to be tensed.
Further, the test goes to establish whether a woman is “habituated” to sex. Hence, It then seeks to discredit her testimony based on the assumption that a woman with a sexual history cannot claim to be raped.
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.
Government’s guidelines on the two-finger test
The Union Health Ministry released a document titled ‘GUIDELINES & PROTOCOLS Medico-legal care for survivors/victims of sexual violence’ in 2014.
On the two-finger test, the guideline states, “Per-Vaginum examination commonly referred to by lay persons as ‘two-finger test’, must not be conducted for establishing rape/sexual violence and the size of the vaginal introitus [opening] has no bearing on a case of sexual violence. Per vaginum examination can be done only in adult women when medically indicated.”
However, these guidelines are not legally binding.
What have been the recent observations of the SC?
A Bench of Justices D Y Chandrachud and Hima Kohli made the comments in its order restoring the conviction and sentencing of a man for the rape and murder of a minor girl in Jharkhand in November 2004.
The girl was set on fire when she tried to thwart his attempts to sexually assault her. Later, she was subjected to the two-finger test in the hospital.
Following the case, the bench observed, “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 (rape) of the IPC are present in a particular case.”
Adding that the “probative value” of a woman’s testimony does not depend upon her sexual history, the 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.”
Has the practice been called out previously?
Soon after the Nirbhaya case in 2012, the Verma Committee formed under former CJI JS Verma, recommended the banning of the two-finger test.
“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. On the basis of this test observations/ conclusions such as ‘habituated to sexual intercourse’ should not be made and this is forbidden by law,” the Committee stated.
Following this, in 2013, under the Criminal Laws (Amendment) Act, 2013, the test was made illegal.
In May 2013, the apex court had held that the two-finger test violates a woman’s right to privacy and asked the government to provide better medical procedures to confirm sexual assault. . A bench of Justice BS Chauhan and Justice FMI Kalifulla said, “Medical procedures should not be carried out in a manner that constitutes cruel, inhuman or degrading treatment and health should be of paramount consideration while dealing with gender-based violence.”
Invoking the International Covenant on Economic, Social, and Cultural Rights 1966 and the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985, the apex court said rape survivors are entitled to legal recourse that does not re-traumatise them or violate their physical or mental integrity and dignity.
In April this year, the Madras High Court directed the state to ban the two-finger test. A bench of Justices R Subramanian and N Sathish Kumar observed that the test is still being conducted in the state, even on minors, despite the 2013 guidelines of the apex court.
In August, the country’s top medical education regulatory body, National Medical Commission (NMC), made modifications to modules for forensic medicine, including guidelines about the two-finger test. The body said that students will be apprised to explain to the court about the unscientific basis of these tests if ordered to be conducted.
