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On 3rd October 2022, the Supreme Court of India, once again, restated that the two-finger test or pre-vaginum test must not be conducted. This blog post traces the history of the test and looks at the recent developments.
Colonial medical jurisprudence was pre-occupied with the examination of the hymenal status of the rape complainant and determination of her vaginal laxity (see Elizabeth Kolsky and Pratiksha Baxi). The two-finger test is an intrusive physical examination, wherein the doctor puts two fingers inside the woman’s vagina to establish if she is sexually active or not. These tests were used to give an opinion on the past sexual history of the rape complainant. The scientific assessment of women’s chastity was key to judgments in colonial rape trials. Medico-legal experts such as Chevers, Lyon, Cox etc. repeatedly cautioned that women laid false charges. Indian women bore ‘a double burden, suspected as liars being women, and presumed to be untrustworthy being native.’ (see Kolsky). Chevers and Lyon’s medico-legal textbooks and their opinion on Indian women heavily influenced Jaising P Modi’s A Textbook of Medical Jurisprudence and Toxicology. This was the authoritative reference book on medical jurisprudence and continues to influence doctors today.
In 2010, Human Rights Watch (HRW) conducted a study in India to determine the prevalence of the two-finger tests. The study, which involved interviewing rape ‘survivors,’ doctors, lawyers, hospitals, and NGOs’, revealed that the practice of using the two-finger test was ‘nearly universal’. Their research indicated that between 2005-2009, at least 153 court decisions from various high courts of India cited two-finger test results. The study also revealed that defense counsel continued to invoke the findings of the two-finger tests in court proceedings to cast aspersions on the character of the complainant. In another study, Mitra and Satish found that out of the 160 cases decided by all the various High courts in 2010, in 74 cases, the judgment expressly discussed the findings of the two-finger test.
In 2013, the Verma Committee, which was reviewing the laws related to sex offences, took note of these HRW findings and emphasised that this patriarchal and regressive test must not be conducted, and irrelevant findings with respect to the hymen, should not be documented. The 2013 Criminal Law Amendment inserted section 53A into the Evidence Act which specified that the evidence of a victim’s character or of her previous sexual experience with any person shall not be relevant to the issue of consent or the quality of consent, in prosecutions of sexual offences.
In May 2013, the Supreme Court of India in Lillu @ Rajesh & Anr vs State Of Haryana, held that the two-finger test violates the ‘right of rape survivors to privacy, physical and mental integrity and dignity.’  The Court noted that the findings of the two-finger test were being used to label complainants as ‘habitual to sexual intercourse’ and strongly emphasised that ‘rape survivors are entitled to legal recourse that does not retraumatise them or violate their physical or mental integrity and dignity.’  Further, it was held that even if the result of the test shows the hymen is torn, it should not give rise to an inference of consent. .
In 2018, the Modi textbook on medical jurisprudence was revised. It now underscores the need to move away from insensitive and degrading medical practices. It highlights that the two-finger test violates the right to privacy of the rape ‘survivor’ and that there is no scientific need to carry out a two-finger test or record a finding if the hymen was ruptured.
Despite these monumental changes, in 2019, approximately 1500 rape ‘survivors’ and their families wrote a letter to the Supreme Court demanding cancellation of medical licences of practitioners who continued to conduct the two-finger test. Rashtriya Garima Abhiyan (RGA), an organization that works with rape ‘survivors’, in support submitted their latest findings to the Court wherein they had documented over 57 cases where the medical practitioners conducted the two-finger test.
Recently, the Supreme Court in the State of Jharkhand v Shailendra Kumar Rai @ Pandav Rai yet again dealt with this issue. The Court again stressed that whether a woman is habituated to sexual intercourse or not is irrelevant in determining whether there is consent in a particular case. The Court highlighted that these patriarchal and sexist tests are based on the incorrect assumption that a ‘a sexually active woman cannot be raped.’ [ 60-2] The Court directed the Union and State Governments to review curriculums in medical schools, formulate further guidelines and conduct workshops to communicate the appropriate medical procedures that are to be used while taking evidence in sexual assault and rape cases. A crucial development in this case is the Court’s direction that any person who conducts the two—finger test while examining a complainant shall be guilty of misconduct.
What remains to be seen is whether the Supreme Courts directions will be taken seriously or will medical professionals continue with these regressive tests.
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