Two-finger test must not be conducted on rape victim, orders SC

The Supreme Court on Monday said that 'two-finger test must not be conducted' on a rape victim.

A bench of justices DY Chandrachud and Hima Kohli said the so-called test has 'no scientific basis and neither proves nor disproves allegations of rape'. Instead, the test 're-victimises and re-traumatises women who may have been sexually assaulted and is an affront to their dignity', the bench said.

The bench held that SC has 'time and again deprecated the use of this regressive and invasive test in cases alleging rape and sexual assault'.

"The so-called test is based on the incorrect assumption that a sexually active woman cannot be raped. Nothing could be further from truth - a woman's sexual history is wholly immaterial while adjudicating whether the accused raped her. Further, the probative value of a woman's testimony does not depend upon her sexual history. It is patriarchal and sexist to suggest that a woman cannot be believed when she states that she was raped, merely for the reason that she is sexually active," said the bench

The ruling was passed while restoring the conviction of an accused involved in a sexual assault case.

As per the judgement, whether a woman is 'habituated to sexual intercourse' or 'habitual to sexual intercourse' is irrelevant for the purposes of determining whether the ingredients of Section 375 of the Indian Penal Code are present in a particular case.

Section 53A of the Evidence Act states that 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, as per the judgement.

SC said that the Ministry of Health and Welfare has already issued guidelines for health providers in cases of sexual violence. The said guidelines proscribe the application of the two-finger test, it said.

Although the two-finger test in the instant case was conducted over a decade ago, 'it is a regrettable fact that it continues to be conducted even today, the court said.

The court has directed the Centre as well as states to ensure that the guidelines formulated by the ministry are circulated to all government and private hospitals. It also asked the Centre and states to conduct workshops for health providers to communicate the appropriate procedure to be adopted while examining survivors of sexual assault and rape and review the curriculum in medical schools with a view to ensuring that the two-finger test or per vaginum examination is not prescribed as one of the procedures to be adopted while examining rape survivors.