The author, Kashvi Singh Shekhawat is a First Year student at the National Law University, Odisha.
Recently, there has been a notable advancement in the interpretation of evidentiary principles concerning sexual harassment cases. The “two-finger test”, one of the most infamous practices, has now been prohibited in India. The two-finger test was first used in the 1800s. Otherwise known as the virginity test, it is conducted by introducing two fingers into the vagina of the victim to evaluate its laxity and to determine whether the hymen is intact or broken. The test is highly unethical and is used to characterize victims as “habituated to sex”.
This practice not only violates Article 21 but also Articles 14 and 15 of the Constitution of India. Recently, the Supreme Court in Jharkhand v. Shailendra Kumar reiterated its opposition to the practice of the two-finger test in rape and sexual assault cases. The division bench firmly proscribed the use of a two-finger. It was held that the previous circumstances of a rape survivor do not imply consent for sexual activity. It’s crucial to recognize that the victim’s past is not a factor outlined in Section 375. Additionally, the presence or absence of the hymen should not serve as evidence in rape cases. The Supreme Court also stipulated that both the Union and state governments ensure the guidelines established by the Ministry of Health and Family Welfare are disseminated to all government and private hospitals.
But this is not the first instance; earlier in 2013, the SC rendered the two-finger test unconstitutional in the case of Lillu @ Rajesh and Anr v. the State of Haryana. The apex court stated that “it violates the right of rape survivors to privacy, physical and mental integrity, and dignity.”
Medical Validity of the Test
In the medical field, it is widely known that the two-finger test has no medical footing. It lacks scientific cogency as the absence of the hymen and the elasticity of the vaginal orifice can result from various factors. It is now confirmed that activities such as riding, cycling, etc. can lead to a torn hymen. The preservation of an intact hymen does obviate sexual harassment while a torn hymen does not substantiate prior sexual intercourse.
The World Health Organization in 2018 asserted that factors such as a woman’s age, pubertal stage, and the method of examination may impact both physical and mental health. The test inherent to its coercive nature and infringement upon bodily autonomy can lead to potentially inflicting harm on a woman’s body, triggering infections and bleeding. Also, the profound shame, guilt, and humiliation experienced by the victim during the course of the test has the potential to induce panic attacks, shocks, and lasting trauma.
Legal Status
Not only does the two-finger test lack medical validity, but italso violates numerous human rights, including the right to freedom from discrimination based on sex, the right to privacy, the right to life and personal integrity, and the right to be free from any kind of torture, degrading treatment or inhuman punishment.
The SC in Maneka Gandhi’s case held that Article 21 of our Constitution safeguards the right to life and liberty for Indian citizens not only against executive decisions but also legislative decisions. In many instances, the courts have voiced that the word “life” includes in its purview privacy, dignity, freedom, etc. The test not only contravenes Article 21 by infringing upon an individual’s dignity and right to privacy but also infringes upon Articles 14 and 15 by discriminating based on sex.
The SC in State of Punjab v. Ramdev Singh, had held that rape infringes upon the fundamental right of the victim as outlined in Article 21 of the Indian Constitution. Sexual violence directly violates the victim’s rights to sanctity and privacy which constitutes a dehumanizing. Such crimes not only devastate the victim’s life but also leave behind
The provisions outlined in the Indian Evidence Act, 1872, initially established the legal foundation for this practice. Section 155(4) of the Act, which was later repealed, allowed evidence regarding the victim’s moral character, including the controversial two-finger test, to be presented in court and considered admissible. This was precisely what happened in Mathura’s case. Mathura “failed” the virginity test, leading to her continuous victimization before both the courts and the police.
Furthermore, it has been reinforced that prior sexual activity by the victim does not, under any circumstances, imply consent. In the case of the State of Uttar Pradesh v. MunshiCourt, it was held that the victim’s prior involvement in sexual activities does not indicate consent. This underscores the importance of recognizing and respecting the autonomy of individuals in matters of sexual consent
Also, in the case of State of UP v. Chhotey Lal, the Allahabad High Court held that the use of the two-finger test was unscientific and unreliable.
In the case of Narayanamma (Kum) v. State of Karnataka, the SC ruled that the rupture of the hymen does not conclusively indicate that the victim is accustomed to engaging in sexual intercourse.
This practice has also been explicitly forbidden in conventions such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (UNCAT), and the United Nations Declaration on the Elimination of Violence Against Women (DEVAW). Furthermore, guidelines from the World Health Organization (WHO) on managing health complications from female genital mutilation stress the importance of upholding women’s dignity and rights in healthcare, a principle incompatible with invasive and humiliating procedures such as the two-finger test.
Thus, there is a pressing requirement for the abolishment of this practice in the country.
The Practice Prevails…
Despite these progressive developments in criminal jurisprudence related to rape laws, the two-finger test is still widely practiced. Its prevalence can be attributed to the deep-rooted prejudice and patriarchal system that perpetuates silence and places blame on the victim. A research by “Human Rights Watch”, conducted in the states of Madhya Pradesh, Rajasthan, Haryana, Uttar Pradesh, and the cities of Mumbai and Delhi, illustrated the lack of awareness among medical professionals regarding the government mandates to prohibit the test. Regulations are not enforced because healthcare falls under state jurisdiction and governments are not obligated to adhere strictly to the rules.
Its continued use highlights the challenges in translating legal reforms into effective practices. The prohibition of virginity tests represents a significant step forward in safeguarding women’s rights and dignity. However, it is imperative that all stakeholders, including policymakers, healthcare providers, and society at large, actively embrace gender-sensitive reforms. As a starting point, Section 164A of the CrPC, which outlines the medical procedure to be undertaken for the victims of rape cases, needs to be amended as presently it does not explicitly ban the two-finger test. Thus, there is also a pressing need for a statutory provision explicitly prohibiting the test.
However, legal changes are not enough. A more extensive transformation is required at the societal level. The deeply ingrained attitudes and perceptions surrounding sexual assault and survivors must undergo substantive change. This involves not only altering legal procedures but also fostering a cultural shift that rejects harmful practices and emphasizes the importance of respecting the rights and dignity of survivors. By collectively rejecting practices that perpetuate gender discrimination and violence, we can cultivate a more equitable society wherein the rights and dignity of everyone are honored and upheld and our constitutional mandate is fulfilled.