Desist From Undertaking 'Two Finger Test',Avoid Disclosing Rape Survivors' Identity: J&K High Court Directs Trial Courts

Further, the Bench of Acting Chief Justice Rajesh Bindal & Justice Sanjay Dhar issued direction to all the health professionals of Union Territory of Jammu & Kashmir, and Union Territory of Ladakh "to strictly desist from undertaking 'two finger test' known as 'per-vaginum examination' on the rape survivors".

The matter before the Court

The State sought leave to appeal against the judgment dated 29.11.2017 passed by the Principal Sessions Judge, Bhaderwah File No.07/Sessions Challan titled State v. Mohd. Imran Khan, whereby the respondent was acquitted of the charge for offence under Section 376 RPC.

The Counsel for the petitioner-State contended that the prosecutrix, in the instant case, was minor at the time of the occurrence and she had in her statement recorded before the Court fully supported the prosecution case.

According to the Counsel, the Trial Court had disbelieved the statement of the prosecutrix on technicalities and for flimsy reasons.

Keeping in view the contentions raised by the learned AAG, the Court found that a prima facie case for grant of leave to file appeal was made out.

Accordingly, the application was allowed and the leave to appeal against the impugned judgment was granted.

Observations of the Court

Before parting with the order, the Court noticed that the Trial Judge had mentioned the name of the prosecutrix at several places in the judgment.

The Court said,

"Section 228A of IPC prohibits disclosure of identity of the victim of certain offences, which includes offence under Section 376 IPC. In pari materia to the aforesaid provision is Section 228A of the J&K Ranbir Penal Code, which was applicable to the case at hand at the relevant time."

The Court also relied on the Apex Court's ruling in the cases of State of Punjab v. Gurmeet Singh, (1996) 2 SCC 384, Bhupinder Sharma v. State of Himachal Pardesh (2003) 8 SCC 551 & Nipun Saxena v. Union of India and others (2019) 2 SCC 703 and concluded that all Courts are bound to avoid disclosure of name of rape victim(s) in the court proceedings as well as in their judgments.

The Court also said,

"Although, prohibition contained in Section 228A may not strictly apply to the judgment of a Court, yet the Courts must avoid disclosing the name(s) of prosecutrix in their orders and judgments, so as to avoid embarrassment and humiliation to a victim of rape."

Importantly, the Court said,

"Rape is not merely a physical assault but it is destruction of the personality of the victim. Therefore, Courts have to act responsibly and with sensitivity while dealing with the cases of rape, particularly, while referring to the prosecutirx."

Further, noting that in the instant case, the prosecutrix, who was minor at the relevant time, was subjected to two finger test and "which must have violated her privacy, physical and mental integrity and dignity", the Court, citing the Apex Court's ruling in the case of Lillu and others v. State of Haryana, (2013) 14 SCC 643, said,

"Two finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity. Thus, "two finger test" has been declared as unconstitutional."

The Court also noted that "two finger test", has been strictly prohibited under the guidelines and protocols issued by the Ministry of Health and Family Welfare, Government of India.

Importantly, the Court said,

"It is the need of the hour to implement the ban on 'two finger test' on rape survivors with full force and in this regard a direction is required to be extended to all the health professionals of Union Territories of Jammu and Kashmir, and Ladakh, so that the judgment of the Supreme Court and guidelines and protocols issued by the Ministry of Health and Family Welfare, Govt. of India, on the subject are taken seriously."

Lastly, the Court directed all the Courts in the Union Territories of Jammu & Kashmir, and Ladakh to avoid disclosing identity of rape survivors in their proceedings and judgments.

A further direction was issued to all the health professionals of Union Territory of Jammu & Kashmir, and Union Territory of Ladakh to strictly desist from undertaking "two finger test" known as "per-vaginum examination" on the rape survivors.

Case title - State of J&K v. Mohd. Imran Khan

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