How Himachal Pradesh HC Takes On 'Self-Incriminating' Two-Finger Test

The Himachal Pradesh High Court ordered a compensation of Rs 5 lakhs to a rape survivor, a minor girl, who was allegedly subjected to the 'two-finger' medical test and questions about her virginity. During the hearing of an appeal by the convict in the case, the Court was presented with the medico-legal certificate (MLC), which included questions on the survivor's virginity, sexual history, and reports of her two-finger test, despite it being held to be a violation of the survivor's rights by the Supreme Court. 

The two-judge Himachal HC bench declared the MLC "demeaning and, to a certain extent, even self-incriminating and self-inculpatory for the child victim”, according to a report in The Print. Justices Tarlok Singh Chauhan and Satyen Vaidya asserted that the survivor is eligible for compensation "for the trauma, embarrassment, humiliation, and harassment that have been caused to her at the hands of the doctors."

HC Court Demands Compensation To Survivor

The court was hearing an appeal filed by the convict identified as Sachin Kumar alias Sanju, who was charged under Sections 376 (punishment for sexual assault) and 354 (assault or criminal force to a woman with intent to outrage her modesty) of the Indian Penal Code, along with provisions of the Protection of Children from Sexual Offences (POCSO) Act, 2012, and the Information Technology Act, 2000.  

On January 11, the MLC, prepared by the Civil Hospital Palampur, was presented to the judges. The High Court declared that it was a grave violation of the survivor's rights to privacy and integrity. The Himachal Pradesh Health Secretary, M. Sudha Devi, appeared in court and was not able to justify the proforma. She stated that these practices were designed by some of the doctors at the Civil Hospital in Palampur and were not performed anywhere else in the state.

The Court observed that the pro forma completely ignores Section 53A of the Indian Evidence Act (Evidence of character or previous sexual experience not relevant in certain cases) as introduced by Amendment Act No. 13 of 2013. Additionally, the Court said that the proforma also violates guidelines and protocols that have been issued by the Ministry of Health and Family Welfare, Government of India, for health professionals dealing with survivors of sexual violence.

"Those irresponsible medical professionals who designed the proforma and those who medically examined the child victim, cannot be allowed to go scot-free, and the child victim essentially and legally needs to be compensated," the Court ordered. The judges said the amount would be paid by the state government for now but would be recovered from the erring medical professionals after an inquiry is held.

What is Two-Finger Test & Why It is 'Self-Incriminating'?

The two-finger test, also known as the 'virginity test' or 'per vaginum' test, is a traumatizing procedure that persists in medical examinations in various South Asian countries. This deplorable practice involves a medical practitioner inserting two fingers into the vagina of a rape survivor, purportedly to determine the state of the hymen and "test the laxity of the vagina." Shockingly, this test is often wielded to label survivors as "habituated to sex." The medical evidence of past intercourse is shamefully used to cast doubt on the authenticity of rape allegations, perpetuating victim-blaming culture.

Supreme Court's Definitive Stand Against the Unscientific 'Two-Finger Test'

On October 31, 2022, the Supreme Court of India (SC) also resolutely declared its opposition to the archaic and invasive 'two-finger test' in rape and sexual assault cases. This historic decision not only denounces the unscientific nature of the test but also highlights its violation of the fundamental rights of rape survivors. The SC, in no uncertain terms, directed both the Union and state governments to eradicate any mention of the test from medical curricula. Furthermore, a stern warning was issued: doctors found conducting the test would be held guilty of misconduct.