Two Finger Test: A Bain To Women's Dignity

In May 2013, the use of the two-finger test was declared unconstitutional by the apex court. Further, in March 2014, the Ministry of Health and Family Welfare issued guidelines for the medico-legal care of sexual violence victims/survivors which banned the two-finger test as the size of vaginal introitus has no relevancy in a case of sexual violence.

The use of the two-finger test has been time and again frowned upon and declared patriarchal and sexist by the Supreme Court and legislative authorities of India. Yet, it continues to be practised widely across the country leading to victims' lack of entitlement to justice.

What Is The Two-Finger Test?

The two-finger test is a practice used by medical examiners in cases of rape or sexual assault. The process of the examination involves inserting two fingers into the vagina of the rape/sexual assault survivor. This is conducted to know the sexual history of the victim, determine whether the hymen of the victim is intact or not, test the laxity of the vagina, and if she has been subjected to penetrative sex or not. This test was done to verify the legitimacy of the case and to make sure that the victim was raped and is not lying about the commission of the offence with ulterior motives.

How Is The Two-Finger Test Inappropriate?

The use of the two-finger test during the medical examination of a rape or sexual assault survivor is completely frivolous and inappropriate. This test is based on the incorrect assumption that a woman that is sexually active or has been involved in sexual intercourse in past cannot be raped. A woman's sexual history is completely immaterial in adjudicating a case of rape or sexual assault and hence, it lacks a scientific basis and entirely relies on the manipulative and unethical practice of victim-blaming. Additionally, the offence of rape is not limited to penetrative vaginal intercourse but extends to intentional and non-consensual penetration into a person's anus or mouth with their penis. In such cases, testing the laxity of the vagina is completely irrelevant.

The use of the two-finger test has led to several Supreme Court pronouncements where the victim was denied the entitlement to justice due to the absurd supposition that a woman with evidence of past intercourse cannot be raped as she is “habituated to sex”.

The same happened in a 1972 case of Tuka Ram and Anr. v. State of Maharashtra,^[1] where a 16-year-old tribal girl, Mathura was allegedly raped by two uniformed policemen who later were convicted not guilty by the Nagpur bench of Bombay High Court. The court justified its ruling by claiming that the two-finger test done during the medical examination of the victim proves that she was habituated to sex, which points towards her initiating sexual intercourse and seducing the policemen. Later in 1978, the Supreme Court overturned this ruling and acquitted the police officers.

History And Legality

The two-finger test was initially conducted to check the modesty of women in some parts of the world, especially in South-Asian countries. In India, the use of the two-finger test was very prominent as part of medical examinations in cases of rape and sexual assault against women. But with the advent of time and development of the society, the practice was deemed immoral, re-victimizing and violative of human rights.

In India, the efforts to stop the two-finger test were initiated around two decades earlier when the National Commission for Women established a subcommittee in 1992 to suggest revisions to the sections of the Indian Penal Code about rape.

Article 21 of the Indian Constitution states that every person has the right to live with dignity and therefore any action hampering the dignity of a person is unconstitutional. The legality of the two-finger test was challenged from time to time as it was against social and cultural values enshrined under the Constitution of India. This practice not only hampers the dignity of women but also goes against the ethical norms established by society.

Considering the same, several legislative guidelines frowning upon the per-vaginum examination were published. Additionally, the Supreme Court in its several judgements has declared the test illegal and highly violative of a woman's dignity.

Judicial And Legislative Approach

The observation of the judiciary and legislative authorities towards the use of the two-finger test has always been negative. The Supreme Court has time to time observed that the practice of the two-finger test hampers the dignity of a woman and is unconstitutional and unethical.

In 2004, the Hon'ble Supreme Court of India stated that the in the cases of rape, the victim being habitual to sexual intercourse or habitual to sex is irrelevant to determine the ingredients of Section 375 of the Indian Penal Code, 1860.

Later, in the year 2012, following the Nirbhaya gang rape and murder case^[2], the nation faced a wake-up call that led to the set-up of the Justice Verma committee. The committee among its several other recommendations, provided that the two-finger test is medically inviable and that based on this test, a conclusion/observation like “habituated to sex” is legally prohibited and should not be made. The Delhi Government too, in its guidelines provided that the two-finger should be banned and that it is not the only method to determine the signs of penetration and injuries of genitalia.

However, these judgements and guidelines had no major impact as almost a year after the Nirbhaya case, the two-finger test was conducted in a case of gang rape reported in the district of Singrauli, Madhya Pradesh on April 20^th, 2014. In this case, a 19-year-old Dalit girl was gang-raped multiple times for over three months by five men, including a police constable and then was thrown out of a moving bus. The Madhya Pradesh police following the two-finger test released a statement in press media that the girl was habituated to sexual intercourse and hence wasn't raped.

The year 2014 was also when the Union Ministry of Health and Family Welfare published guidelines and protocols titled “Medico-legal care for survivors/victims of Sexual Violence”^[3]. These guidelines provided that the two-finger test was not at all substantial evidence in case of rape/sexual assault and is demeaning in nature. It provided that the two-finger test may only be used in cases when it is medically necessary. However, since these guidelines and protocols by the ministry were not legally binding and the contravention of the same did not attract any criminal liability, they were not effectively followed.

Several High Courts like the Maharashtra High Court in the case of the State of Maharashtra and Anr. v. Madhukar Narayan Mardikar^[4], the Gujrat High Court in the case of State of Gujrat v. Rameshchandra Rambhai Panchal^[5], and the Madras High Court in the case of Kajendran v. Superintendent of Police^[6] have ordered to discontinue two-finger test and have held it violative of rape/sexual abuse survivors' right to live with dignity and privacy.

Nearly a decade later, on 31^st October 2022, the Supreme Court bench constituting Justices D.Y. Chandrachud and Hima Kohli, while deciding the case of State of Jharkhand v. Shailendra Kumar Rai^[7] reaffirmed the ban on the two-finger test and declared it unscientific and traumatizing to the rape survivors. The apex court reversed the judgement of the Jharkhand High Court and convicted the respondent for the rape and murder of the victim under the Indian Penal Code. Additionally, the court provided that performing a two-finger test or the per-vaginum examination on the victim or survivor of rape/sexual assault is illegal anyone performing the same will be considered guilty of misconduct. The apex court further ordered the union and state governments to work towards removing references to the test from the medical curriculum.

Societal View

The use of the two-finger test was initially accepted by society. Earlier, a large section of society had a victim-blaming mentality towards women, especially in cases of rape, molestation, and sexual violence. Most of the time, they were blamed for the happening of crimes towards them and forced to keep shut to maintain their respect in society.

But, with the advent of time and progress in society, the practice was gradually condemned. The dignity of women and their protection was one of the main concerns of the Indian government of the 21st century, which led to the formation of many women-centric laws.

A society mainly consists of two generations- One with an advanced mindset and the other who even today lacks the confidence to discuss problems associated with women's modesty. This empowers the part of the society with a derogatory mindset towards women to perform activities that hampers the dignity of a woman. However, with the rise in education and awareness in society, the mindset of people has shifted from blaming the victim to convicting the offender and condemning the offence.

Replacement Of The Two-Finger Test

One such event that upends the victims' lives completely is rape. Many victims have experienced long-term effects from it, such as the diminished ability to form intimate relationships, behaviour and values changes, and constant terror. A woman or girl who is sexually assaulted is not a co-conspirator; rather, she is the victim of the lust of another person. Treating her as though she were a complicit party and casting doubt on her testimony is inappropriate and unacceptable.

The two-finger test has no scientific backing, as proven by doctors that the laxity of the vaginal muscle also depends on the psychological state of a person.

In replacement of the two-finger test, the Madras High Court while directing the state to ban the two-finger test said that testing DNA samples must be done to collect evidence in cases of rape or sexual assault.

DNA is found in almost every cell and is the genetic blueprint for life. Except for identical twins, no two people have ever had the same DNA. When two samples match, a virtual identification can be made by DNA testing.

Therefore, it aids in convicting the wicked and clears the innocent. It is a scientific process compared to the unscientific process of the two-finger test, which is more precise and accurate and above all, protects the dignity of victims and also has greater evidentiary value in the eyes of the law.

Suggestion

It appears just and proper to state that the following suggestions can be implemented:

1. Implementing penal provisions against anyone conducting a two-finger test- Penal provisions under IPC can be implemented for conducting two-finger tests which will minimize the occurrence of such tests in future.

2. Awareness Camps- Conduct awareness camps on the two-finger test and its effect on women's dignity especially in rural areas and tier 2 cities where this derogatory practice is still prevalent.

3. Inclusion of psychologists- Several times, the proceedings dealing with offences against women involve arguments that may be defaming and challenging for the victim to deal with. Therefore, the inclusion of psychologists during such trials may serve as a catalyst to ensure that it casts no negative and adverse psychological impact on the victim. This is important to take care of as several times people lack the confidence to file cases and are demotivated for this reason.

To conclude, it is pertinent to state that any practice or activity that hampers the dignity of an individual and gives rise to a patriarchal and sexist mindset is unacceptable. Offences like rape and sexual assault are inhuman acts that condemn the righteousness of a society. Upon that, examinations like the two-finger test are add-ons to such heinous and inhuman acts. Such tests further traumatise and defame the victim by questioning her ethics. A medical examination is vital for forensic investigations, yet it alone cannot conclusively prove rape as consent remains the pivotal factor. Legally, medical evidence only supports cases by confirming sexual intercourse, while the determination of rape hinges on the legal definition rather than solely on medical findings.

The two-finger test not only is immaterial to proving rape or sexual offence but is also a completely unethical and immoral practice that infringes the dignity and privacy of a woman. Further, it also discourages the rape victims from standing up for themselves and taking legal help as the two-finger test discredits her testimony based on an unavailing assumption that a sexually active woman cannot be raped.

Although the two-finger test or the virginity test is now banned and declared illegal, it still is widely used in several parts of the country. The virginity test is not only highly violative but also questions the entire criminal justice system for allowing such unethical and misogynist practices to prevail. This is due to the lack of a specific penal provision or law on the same. Therefore, it is high time for the legislative authorities to come forward and form a law on it.

Amit Pandey is an Advocate at High Court Lucknow Bench & Divyanshi Gupta is a student at Amity Law school, Lucknow . Views are personal.