Supreme Court Asks Meghalaya Govt To Issue Clear Instruction About Ban On 'Two-Finger' Test In Rape Cases
Recently (on May 07), the Supreme Court, while hearing a criminal appeal arising out of the High Court of Meghalaya, expressed its dismay that the “two-finger test” was used in a rape case despite being deprecated by the Top Court. The Court also took into account that the decision in Lillu @ Rajesh and Anr. V. State of Haryana (2013) 14SCC 643, holding that the two-finger test on a...
Recently (on May 07), the Supreme Court, while hearing a criminal appeal arising out of the High Court of Meghalaya, expressed its dismay that the “two-finger test” was used in a rape case despite being deprecated by the Top Court. The Court also took into account that the decision in Lillu @ Rajesh and Anr. V. State of Haryana (2013) 14SCC 643, holding that the two-finger test on a rape victim violates her right to privacy, was passed before the present incident had occurred.
"It is true that the incident in the case on hand had happened a decade ago, to be precise, on 26.10.2013. Thus, the case on hand revealed the continuance of contumacious conduct of conducting the “two-finger test” even after the decision of this Court in Lillu Alias Rajesh and Anr. v. State of Haryana [(2013) 14 SCC 643]."
A Bench of Justices CT Ravikumar and Rajesh Bindal was hearing an appeal challenging the High Court's order that affirmed a conviction of an accused/ present appellant for the offence of rape. While hearing the same, the Court came across a shocking incident where a two-finger test was applied to a rape victim. Earlier, the Court had questioned the State of Meghalaya as to what steps have been taken to eradicate this practice of the “two-finger test” in rape cases.
"While considering the petition and coming across the shocking incident which reveal that despite the prohibition on practice of conducting “two-finger test” to determine whether a victim of a rape was habituated to sexual intercourse, which act strongly deprecated by this Court as it being regressive and invasive nature of test, we put a question to the learned counsel for the State as to what steps have been taken to ensure to eradicate this evil practice, in the light of various decisions of this Court.”
Accordingly, the Advocate General of the State, Amit Kumar, apprised the Court in light of the Supreme Court's decision in State of Jharkhand vs. Shailendra Kumar Rai @ Pandav Rai(2022)., appropriate action to eradicate the evil practice has been taken. In the mentioned case, the Court, in the year 2022, had reiterated the prohibition on the "Two-Finger Test" in rape cases and warned that persons conducting such tests would be held guilty of misconduct.
He also referred to the guidelines issued against the use of this practice and also the recent letter encompassing a warning that violation of Shailendra Kumar Rai's case would be treated as misconduct. However, unsatisfied with such a letter, the Court stated:
“When a particular practice which is deprecated by this Court repeatedly and described it as a regressive and invasive nature, we are of the considered view that the proposed action in terms of the said letter dated 29.4.2024 should have been specific and the consequences must have been spelt out as of serious nature.”
In view of this, the State officer submitted that appropriate further orders would be issued in the light of Shailendra Kumar Rai's case. The orders will be passed to ensure that the said practice is eradicated.
Accordingly, the Court posted the matter to September 29.
Case Title: SUNSHINE KHARPAN VS. THE STATE OF MEGHALAYA., DIARY NO. - 48388/2023
Citation : 2024 LiveLaw (SC) 377