Supreme Court condemns Two-Finger Test on Rape or Sexual assault survivors | Law Today

Supreme Court today declared that any person conducting the invasive ‘two-finger’ test on rape or sexual assault survivors will be found guilty of misconduct. In a judgment, a Bench led by Justice D.Y. Chandrachud said the sole reason behind using the test on traumatised sexual assault survivors is to see whether the woman or girl was “habituated” to sexual intercourse
The court said Such a “concern” was irrelevant to fact whether she was raped or not and held that "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."

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All India People’s Science Network (AIPSN), Samata, Bharat Gyan Vignan Samiti (BGVS), All India Coordination Committee of Working Women (AICCWW), Jana Vignana Vedika (JVV), Women's Organisations and others welcomed the Supreme Court judgment that any person conducting the invasive ‘two-finger’ or ‘three-finger’ vaginal test on rape or sexual assault survivors will be found guilty of misconduct. Several organisations demanded to cancel licences of doctors who still conduct two-finger or three fingers tests. They were demanding from decades in vain Centre and the State Governments to ensure that the Ministry of Health and Family Welfare guidelines were followed strictly.

The Supreme Court declared that any person conducting the invasive ‘two-finger’ or ‘three-finger’ vaginal test on rape or sexual assault survivors will be found guilty of misconduct. In a judgment on October 31, 2022 SC Bench led by Justice D.Y. Chandrachud said the sole reason behind using the regressive test on traumatised sexual assault survivors is to see whether the woman or girl was “habituated” to sexual intercourse. Such a “concern” was irrelevant to fact whether she was raped or not. “Previous sexual experience is immaterial to the question of conduct, ” Justice Chandrachud, who authored the verdict, held.

The faulty logic behind the test was that “a woman cannot be believed when she said she was raped merely for the reason that she was sexually active”, the court said. “This so-called test has no scientific basis and neither proves nor disproves allegations of rape. It instead re-victimises and re-traumatises 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 Bench, also comprising Justice Hima Kohli, directed.

The court said the legislature had amended the criminal law in 2013 to introduce Section 53A in the Indian Evidence Act. “In terms of Section 53A, the evidence of a victim’s character or her previous sexual experience with any person shall not be relevant to the issue of consent or the quality of consent in the prosecution of sexual offences, ” the court held.

The Bench noted that the Ministry of Health and Family Welfare had issued guidelines for health providers in cases of sexual violence. “These guidelines have proscribed the application of the two-finger test, ” the judgment noted. “But it is regrettable that it [two-finger test] continues even today, ” the court underscored.

The court directed the Centre and the State Governments to ensure that the Ministry’s guidelines were followed to the letter. The court ordered that the guidelines be circulated to private and government hospitals.

SC said workshops should be held for health providers to prevent the test from being conducted on rape survivors. The court said the curriculum in medical schools should be revised. It ordered copies of the judgment to be handed over to the Health Ministry, which should be circulated to the health and home departments of the States. The home departments should circulate the judgment to the Director Generals of Police in the States.