TWO FINGER TEST AND ITS UNCONSTITUTIONALITY
Updated: Jan 2, 2022
Author: Prashasthi Srivastav, V year of B.S.L.,LL.B. from Manikchand Pahade Law College Aurangabad, Maharashtra
Co-author: Sanni Kumar, V year of B.S.L.,LL.B. from Manikchand Pahade Law College Aurangabad, Maharashtra
Justice D.Y. Chandrachud, while delivering the main judgment of ‘Justice K.S. Puttuswamy (Retd.) v. Union of India’emphasized upon dignity as an intrinsic part of ‘Right to Life’
“To live is to live with dignity. The draftsmen of the Constitution defined their vision of the society in which constitutional values would be attained by emphasising, among other freedoms, liberty and dignity… Because the basic rights attempt to attain the dignity of existence for each human, dignity is at the heart of them all. Individual dignity is assured by privacy and its concomitant ideals, and only when life can be lived with dignity can liberty be really meaningful…
These words of Justice Chandrachud make it very clear that the dignity of every individual is of prime importance and cannot be taken away in any manner.
WHAT IS THE TWO-FINGER TEST?
The test is done to see if the victim has had any recent sexual encounters. The hymen is examined as part of the test. The hymen is a membrane that surrounds or partially covers the vaginal external opening. The hymen is examined since it can only be torn if the lady has engaged in sexual activity. It is not only unethical, but it is also medically faulty. The presence of a hymen does not indicate that a woman has engaged in sexual activity. According to a medical article, the hymen can be ripped for a variety of causes, including cycling, riding, and masturbating. According to research, an unbroken hymen does not rule out sexual assault, and a damaged hymen does not always indicate previous sexual intercourse. Some women are even born without a hymen, according to popular belief. Consider the situation of a rape victim who, after having her dignity stripped from her, gets raped again by such an unethical medical procedure.
In certain civilizations, a virginity test was performed to determine a bride's virginity before she was married (Still being used in Indian culture). This was done by an examiner, who would subsequently issue a virginity certificate (Yes, a certificate). The second alternative was to use 'evidence of blood,' which included ripping the hymen and causing blood leakage. In case you're wondering, no, there was never and never will be a male virginity test.
In India, virginity tests are common. 'Kukari ki Rasam,' also known as threat ritual, is a centuries-old Indian tradition. The existence of hymen is checked using a skein of thread; if it is not identified, the bride is deemed unclean. She is frequently beaten to divulge her lover's identity, and her male companion is frequently made to pay money to the bride's family. Yes, they profit from their daughter's private organs. The practise continues in India's rural areas, where the media and non-governmental organisations are unable to access. The police were likewise powerless to intervene since the incident did not fall under the Indian Penal Code.
A QUESTION OF JUSTICE AND DIGNITY: THE TWO-FINGER TEST
Every hour, 18 women are sexually assaulted in India. This number may fluctuate from time to time, but crime is still prevalent. I'm still waiting for the day when I don't hear of marital rapes, wives being burned for dowry, dads and uncles raping their daughters, or any of the other horrific crimes that occur in our culture.
The rape case on December 16th rocked the entire country. The victim died on December 29th in a foreign country (indeed, she was only relocated after the Prime Minister's national announcement, which happened a week after the occurrence). The rape case revealed not only how common and severe crimes are, but also how much our system has ignored over the last 60 years. The Justice Verma Committee was formed to consider more stringent legislation and penalties for individuals who commit these horrific acts. Everything was covered and debated, from protests to politics. The TWO FINGER TEST, also known as the VIRGINITY TEST, came up in one of these debates.
After the 16th December rape case, Justice Vermacommittee proposes stricter regulations, signalling the end of the Two-Finger Test. "The size of the vaginal introitus has no bearing on a case of sexual assault, and hence a test to measure the suppleness of the vaginal muscles, often known as the two-finger test, should not be performed "The 657-page report was written by the committee. "This test should not be used to establish conclusions such as 'habituated to sexual intercourse,' as this is prohibited."
The Supreme Court held in Lilu @ Rajesh and Anr v. State of Haryana (2013), that the two-finger test is unconstitutional. The two-finger test was declared illegal by the Supreme Court. It infringes on the right to privacy, bodily and mental integrity, and dignity of rape survivors. As a result, even if the report is positive, this test cannot ipso facto lead to a presumption of consent. Rape survivors are entitled to legal recourse that does not traumatise them or violate their physical or mental integrity and dignity, according to the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power of 1985 and the International Covenant on Economic, Social, and Cultural Rights of 1966. They also have the right to have medical treatments carried out in a way that respects their right to consent. Medical operations should not be carried out in a way that is cruel, inhumane, or demeaning, and health should always take precedence when dealing with gender-based violence. Survivors of sexual violence have a legal right to such assistance, and the state is required to provide them. There should be no arbitrary or unlawful interference with their privacy, and proper precautions should be taken to safeguard their safety.
The Union health ministry issued new instructions for treating rape victims in March 2014, instructing all hospitals to establish up a specialised space for forensic and medical investigation of victims, as well as abolishing the unscientific two-finger test. With the support of specialists, the Department of Health Research (DHR) and the Indian Council of Medical Research (ICMR) created a set of national standards for dealing with criminal assault cases, which would ideally put an end to the horrifying medical procedure that victims face following sexual abuse. The Department of Human Rights had also prepared a new guidebook to address the psychosocial consequences of sexual violence, which included therapy for victims to help them cope.
The Jammu & Kashmir High Court stated, "It is imperative to fully impose the ban on the 'two-finger test' on rape survivors." "The virginity test is inherently invasive and an infringement of a woman's physical privacy. It is a flagrant breach of a woman's dignity. The conclusion reached based on these tests regarding a woman's sexual history and character is an outright assault on her dignity. It has a negative impact on a victim's social and cultural position."
Even if there are various laws dedicated entirely to the preservation of a woman's dignity and modesty, it is clear that serious abuses of fundamental rights to a woman's dignity continue to occur when she is still in her mother's womb.
RAPE COMPLAINT FILED BY WOMAN AIR FORCE OFFICER
Despite the fact that the country is still recuperating from the Covid epidemic, it appears that violence against women has not been put on hold. On September 26th, the All Women Police in Coimbatore, Tamil Nadu, detained an Air Force flight lieutenant in response to a rape charge filed by a female air force officer against a colleague. The lady officer said that she took a painkiller for an ankle ailment on September 10th and that she had two drinks with a group of friends that night (one of which was supplied to her by the accused cop). The officer claimed that she was sexually raped by a coworker who she witnessed enter the room and sexually abuse her while she was unconscious.
Following media reports that an IAF officer in Coimbatore was subjected to an invasive two-finger test by Indian Air Force medics after being raped by a colleague, The head of the National Commission for Women (NCW), Rekha Sharma, wrote to the Air Chief Marshal, urging that the claims be investigated.
Virginity is valued highly over the world as an indication of a woman's character and marriageability. This is very unfortunate that the two-finger test is still practised in the 21st century. Even though we have reached the moon and mars but our thinking is still old.
WHAT IS NEEDED AT THIS POINT IN TIME
The medical assessment of a rape victim is always crucial. As a result, the examination must be carried out with extreme caution while adhering to the highest medical and ethical standards. India is a developing country, yet one that is rapidly developing. When it came to ethical norms, the existence of the two-finger test was enough to indicate that we needed to learn a few things right away. Furthermore, individuals who engage in it must face appropriate repercussions. It is past time for the laws to be fully followed in such circumstances.
The Maharashtra University of Health Sciences (MUHS) has eliminated the topic "Signs of Virginity" from its syllabus for the course "Forensic Medicine and Toxicology," which is taught to second-year medical students. As a result, medical students would no longer be taught the contentious "virginity test." This is a commendable step because studies have shown that doctors, particularly in rural areas, routinely use the two-finger test, indicating that they are unaware of recent legal developments that have made this practice illegal and declared it unconstitutional, infringing on a woman's right to privacy. The PV can be used to identify a variety of medical conditions, but it does not give any information on virginity. We can only hope that other medical schools would follow suit.