'Degrading' And 'Unscientific' Two-Finger Test- Bombay High Court Asks Maharashtra Govt To Strictly Follow Guidelines Against It

"We hope that the State of Maharashtra would take necessary steps to shun all such unscientific and heavily criticized "two finger tests". It appears that the Government of Maharashtra has formulated some guidelines. We expect and hope that the State will strictly adhere to the same," the court observed.

The "two finger test" was done to ascertain the sexual history of a rape victim and was banned in Maharashtra.

The bench observed thus while upholding the life sentence of Mohammed Ashfaq Sheikh awarded by the trial court, and dismissing his appeal in the brutal gang-rape of a 19-year-old telephone operator.

On August 22, 2013 just months after the brutal Delhi gang rape, a photo-journalist in Mumbai was raped by five men in the defunct Shakti Mills compound. Following the outrage and swift action by the police, another survivor came forward a month later.

The 19-year-old telephone operator said she was also raped by five men in same compound on July 31.

Three accused in the two gang rape cases were found to be common and sentenced to death by the trial court in 2014 in the photojournalist's case. However, the Bombay High Court set aside the death penalty yesterday, but upheld life imprisonment under section 376D.

The present appellant- Moahmmed Ashfaq- was the fourth accused in the telephone operator's case. He was sentenced to life imprisonment. The fifth accused, a juvenile, was tried separately.

Two Finger Test

In its order the High Court noted of certain observation of the trial court about how the telephone operator was medically examined right after she reported the incident of rape.

"Disturbing features in respect of medical examination of rape victim by the doctors of J.J. Hospital who had followed the degrading and unscientific archaic "two finger test" in examination of prosecutrix though the Hon'ble Supreme Court in case of Lilu @ Rajesh and Anr. V. State of Haryana, has taken a serious note of it,," the Bombay High Court said.

The bench quoted to paragraphs from the judgement which said that rape survivors are entitled to medical procedures that respect their right to consent and medical procedures should not be carried out in a manner that constitutes cruel, inhuman, or degrading treatment.

"In view of International Covenant on Economic, Social and Cultural Rights 1966; United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985, rape survivors are entitled to legal recourse that does not them or violate their physical or mental integrity and dignity. They are also entitled to medical procedures conducted in a manner that respects their right to consent."

The court had said that the two finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity.

"State is under an obligation to make such services available to survivors of sexual violence. Proper measures should be taken to ensure their safety and there should be no arbitrary or unlawful interference with her privacy. Thus, in view of the above, undoubtedly, the two finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity."

A division bench of the Justices Sadhana Jadhav and Prithviiraj Chavan noted that Maharashtra government seems to have certain steps pursuant to the outrage over the test back then and must strictly follow it and directed Maharashtra Government to strictly adhere to the guidelines.

The learned Sessions Judge, before parting with the judgment had observed certain disturbing features in respect of medical examination of rape victim by the doctors of J.J. Hospital who had followed the degrading and unscientific archaic "two finger test" in examination of prosecutrix, though the Hon'ble Supreme Court in case of Lilu @ Rajesh and Anr. V. State of Haryana, has taken a serious note of it and condemned it by observing in para 12 and 13, which read thus:

"116. We hope that the State of Maharashtra would take necessary steps to shun all such unscientific and heavily criticized "two finger tests". It appears that the Government of Maharashtra has formulated some guidelines. We expect and hope that the State will strictly adhere to the same. 117. Corollary of the entire discussion made hereinabove is that the impugned judgment and order of conviction dated 21st March, 2014 and sentence rendered by the Sessions Judge, Greater Mumbai in Sessions Case No. 914 of 2013 does not warrant interference in appeal. The appeal is devoid of merits and hence, stands dismissed." (PRITHVIRAJ K. CHAVAN, J.) (SMT. SADHANA S. JADHAV, J.)