Author: Ishita Saxena, a student of Symbiosis Law School, Noida
Abstract
The research paper is a study on the tremendously horrifying two – finger test. This legal article analyses the legal procedure involving the two-finger test. The paper discusses the traumatic experience of the rape victim who experiences it. The author has used a doctrinal method of research. The paper also studies the Supreme Court’s stance on the test. An in-depth analysis of the two – finger test is the main subject of the research paper. The author wants to help the reader realise the pain and emotional suffering that the rape victim goes through when the test is performed on her.
Introduction
The two-finger test is a virginity test that determines the virginity of the woman. The test involves putting two fingers in the vagina of the woman to ascertain the laxity and check that the hymen is intact. The test is a has been traditionally practised to test the virginity of a woman. In earlier times, this test also signified confirmation of the honour of the woman. It is practised on a rape victim to test that whether the virginity wall is intact. This test has been condemned by many authorities as it reminds the rape victim of the horrific experience that she had to go through because of the heinous crime of the offenders. The two-finger test is not a scientifically proven test rather it is considered a pseudoscientific test to check the virginity of the woman.
Analysis
As defined above, the two-finger test involves putting in two fingers in the vagina of the woman to check whether the woman has been sexually active in the past. Origin of the test dates back to 18th century. Since times, elderly people have used this test to check the virginity of the woman. Furthermore, this test is also associated with the honour of the woman and due to this many a times unmarried woman has been boycotted by the society.
COURT’S STANCE
The two-finger test has been condemned by the Supreme Court in its various judgments. The Court showed its discontentment with the test in the case of Lillu v. State of Haryana (2013). The court said that the two-finger test and its interpretation violate the right of rape survivors to privacy, physical and mental integrity, and dignity. It was in this case that the Supreme Court had declared it unconstitutional. It is true that this test invades the privacy of the woman. The fingers of the medical practitioner be it male or female goes into the private parts of the woman. This test also aggravates the pain and the injuries that are incurred on the woman due to the forced sexual intercourse.
High courts have also held the same stance on the two-finger test. They have also condemned the existence of such a scientifically unproven and emotionally damaging test. In the case of State of Gujarat v. Rameshchandra Ramabhai Panchal (2020), the Gujarat High Court acknowledged that the two-finger test is an unscientific method of examination. Other High Courts have also agreed that this test is not capable evidence neither as medical nor forensic. They had also said that this test has no reliability factor.
In the landmark judgment of State of Jharkhand v. Shailendra Kumar Rai @ Pavan Kumar (2022), the Court clearly held that the two-finger test or the pre vaginum test should not be conducted. The court reiterated that the test is not science based and does not prove or disprove the commission of the act of rape. The court said that this test instead, reminds the victim of the incident. It re – traumatises and re – victimises the woman. The court held the test to be sexist and against the sentiments of a woman. The Supreme Court also referred to the case of Lilu v. State of Haryana.
THE INCAPABILITY OF THE TEST
The two-finger test is not a morally acceptable practise. Any stranger cannot be allowed to put his/her fingers inside the body of a woman only to test her virginity. The test is not reliable because there are many other cases which caused the breaking of the hymen other than the act of rape. It is also possible that the woman had been sexually active in the past with her due consent. There had been many instances when due to the failure of the test’s intent, an accused had been acquitted. In a case, the test was performed on a 14-year-old girl and due to the results of the test she was declared ‘habituated to sex’ and thus the accused was released.
Article 21 of the Indian Constitution provides that every person has the right to life. This right is not restricted only to living but includes living with dignity, freedom, privacy, etc. Thus, it was necessary that the two-finger test be banned because of the extent o the breach of privacy that it causes to the rape victim. The entering of someone else’s finger in the vagina of a woman is a very personal and traumatising act to the woman and should not be performed.
SOCIAL IMPLICATIONS
The main aim of the test is to ascertain the laxity and determine whether the hymen is intact. The hymen is a thin wall that may break due to everyday activities like sports or it may also break when the woman is indulging in the act of sex for the first time. The test is based on the idea that if some blood comes out during the test or basically the hymen is intact then no sexual intercourse had taken place. This test determines the virginity of the woman. In Indian society, if the woman is found ‘sexually active’ it is considered as ‘bad behaviour.’ This also tells that she loses her credibility and the accused is acquitted. A woman’s sexual behaviour cannot be a factor of her credibility as evidence. Her sexual character is her personal choice and being sexually active it cannot be said that she had lost her credibility.
GOVERNMENT’S GUIDELINES
The Government has provided some recommendations based on the 2013 Justice Verma Committee’s report. The Ministry of Health & Family Welfare provided the document named, Guidelines & Protocols Medico – legal care for survivors/victims of Sexual Violence. The guidelines provide that the test must not be taken as evidence of constituting the offence of rape. It tells that the size of the vaginal introitus does not play any role in determining whether the offence of sexual assault was incurred on the woman or not. The government has also supported the idea that the test is not a reliable test to establish the offence and the sexual activity of the woman has nothing to do with the incident that happened to her.
However, the guidelines have not been implemented by the government and its violations had also not witnessed any legal consequences.
Conclusion
It is to be understood that even if a woman is ‘habituated to sex’ or had been ‘sexually active’ in the past, it is nothing to do with the rape accusations that had been put by her on the other party. What matters in a rape case is the consent of the woman. To constitute a case of rape it is required that the consent of the woman was not free or was not taken. The society should understand that it is no fault of the woman if her hymen has been broken. Nor there is wrong if she has been sexually active in her past, irrespective of her marital status. To constitute the offence of rape one should focus on the consent of the woman. If the sexual act was consensual then it may not constitute the offence of rape provided that the consent so obtained was devoid of any coercion, duress, fraud, or any other factor that may hinder the nature of free consent.
The test should not be performed on rape victims/survivors as it damages their emotional and mental health when they experience the same penetration in the vaginal introitus. It re – traumatises the victim and reminds her of the painful act that happened to her. This test is also not reliable because the results may also be hampered and the medical report of the woman might be affected or one factor that the results may not be reliable that the fingers may also not penetrate to the required extent. Thus, there is no reliability factor of the two-finger test and cannot be seen as a strong evidence in the court of law.
This test also enables the society member to mock the character of the woman. In India, even rape is an act which is not much talked about especially in the presence of elderly. And then, if it is discovered that the woman had been consensually participating in sexual intercourse then the society members may look down on the woman on the basis of her character. Thus, it is necessary to keep the honour of the woman intact by not performing the two – finger test on her. It is her personal choice of being involved in the act and nobody else has the right to pass any comments on her.
