Experts hope that Supreme Court's imposition of penalty for ‘two-finger’ test on rape survivors will bring about change

In a significant ruling on Monday, the Supreme Court held that any person conducting the “two-finger test" on rape survivors will be guilty of misconduct and directed the Union Health Ministry to ensure that the practice is put an end to..This is not the first time the apex court and the High Courts have frowned upon the unscientific test. Regardless, rape survivors in India continue to be subjected to this “patriarchal and sexist” procedure..In this article, we look at the law surrounding the test, how the courts have dealt with the issue and how legal experts feel the apex court's latest ruling will change things on the ground..What is the ‘two-finger’ test?.The two-finger or per vaginum examination is an invasive physical procedure where the medical professional inserts two fingers inside the vagina of a rape survivor to check if the hymen has ruptured or not, with a view to inferring whether sexual assault or intercourse took place.On Monday, the Supreme Court termed it “patriarchal and sexist” while underlining that the test was based on an incorrect assumption that a sexually active woman cannot be raped. .In 2015, Advocate Neetika Vishwanath, during her research at Lucknow’s fast-track courts, found that the test continued to be administered even though it had been prohibited by the Ministry of Health and Family Welfare by way of its guidelines for such cases in 2014.“I found that this test was still being conducted in every case that had been filed before the Criminal Law Amendment Act, 2013 came into force. My finding was derived from the medico-legal certificates (MLCs) in the case files which made explicit mention of the test,” she wrote in 2015..The research revealed that in cases instituted after the 2013 Amendment Act was passed, there was no mention of the test and there was also a change in the proforma of the MLC. “But some lawyers told me that the only reason the test was not recorded was because of the change in the proforma; it was, however, being conducted as before in every rape case,” she wrote in her research paper..The 2014 Guidelines and Protocols: Medico-legal care for survivors of sexual violence Vishwanath’s research paper referred to instructs all doctors concerned as saying,“Per vaginum examination, commonly referred to by lay persons as 'two-finger test', must not be conducted for establishing an incident of sexual violence and no comment on the size of vaginal introitus, elasticity of the vagina or hymen or about past sexual experience or habituation to sexual intercourse should be made as it has no bearing on a case of sexual violence (sic).”On the other hand, the 2013 Act amended the Evidence Act to insert Section 53A, which stipulated that evidence of a "victim’s character or of her previous sexual experience with any person shall not be relevant to the issue of consent or the quality of consent, in prosecutions of sexual offences"..What the courts have said.The 2013 Supreme Court decision in Lillu alias Rajesh and An. v. State of Haryana is one of the defining verdicts on the issue of the two-finger test. The Court, while hearing a criminal appeal against a rape conviction, said that the procedure was violative of the right to privacy, and the mental and physical integrity of a rape survivor.It underlined that the issue required a “serious consideration” by the apex court, as there was a demand for “sound standard of conducting and interpreting forensic examination” of rape survivors.In doing so, the Court also referred to its crucial past decisions. One was a 1994 judgment in X v. State of Karnataka & Ors, where it was held that the fact of admission of two fingers and the hymen rupture did not give a clear indication that a survivor was habituated to sexual intercourse. .On December 18, 2019, a three-judge Bench of the Supreme Court in a suo motu case reiterated the 2013 decision, highlighting that the test had been held to be of “no consequence and violative of the dignity of woman”. As a result, it had called for a status report on “whether the medical experts have done away with the per vaginum examination commonly referred to as two-finger test and whether any directions have been issued by the states in this regard”.The matter is listed for hearing next week..More recently, the Bombay High Court called the test "unscientific" and hoped that the Maharashtra government would take necessary steps to curb it. The Court noted that the State government has formulated some guidelines and would “strictly adhere” to the same.The High Court of Jammu & Kashmir and Ladakh in 2020 issued directions to all health professionals in the two union territories to “strictly desist” from conducting the test on rape survivors.The Madras High Court this year in fact directed the State government to “immediately” ban the practice of the two-finger test..What is the penalty?.Advocate Vrinda Grover explained that the use of the term "misconduct" by the Supreme Court could mean that the act would be treated as misconduct under the Professional Code of Conduct of doctors or medical professionals.“All doctors are governed by a code of conduct and the use of the two-finger test is now to be added to the list of misconduct. There will be consequences that follow if any doctor uses the two-finger test and lists it in the medical report, the MLC that is prepared for the rape victim/survivor,” said Grover.Grover also recalled the 2014 protocols to be followed by doctors examining rape survivors and outlined that since this malpractice had continued despite repeated directives, the top court resorted to penalise the two-finger test as a misconduct..Scope for change.As someone who has represented survivors of sexual assault, Grover was informed that the two-finger test was conducted in an almost mechanical and routine manner by doctors at all hospitals. “A woman gang-raped during a communal incident and whose complaint was registered after four months, was taken for medical examination after four months when the doctor performed the test on the married woman survivor. Of course, the test would have yielded no ‘medical evidence.’ yet it was conducted,” she recalled.In another case, a woman Grover came cross had complained of forced oral sex but was told to undergo the two-finger test. .What is of prime importance is that the woman should be heard very carefully by the doctors; rather than use the two finger test and through that garner evidence from the body of the woman to contradict her testimony.Advocate Vrinda Grover.According to her, in situations where women refuse the test, the MLC records the refusal and it gets magnified in the courtroom by the defence to portray the refusal as an indication of the falsity of the complaint.“The only time when a per speculum test is required is when any injuries are sought to be examined in that area. Therefore, what is of prime importance in each incident is that the woman should be heard very carefully by the doctors; rather than use the two finger test and through that garner evidence from the body of the woman to contradict the testimony of the woman, which is the only perverse purpose that the two-finger test serves,” she underlined..Bharti Ali, co-founder at HAQ, an NGO working with child rape survivors, says although the two-finger test was banned long ago by virtue of the decision in Lillu v. State of Haryana, it was still being conducted, as no penalty was attached to it and doctors were seldom trained on such judgments. “Now if the Supreme Court has said that it will be treated as misconduct, we might be able to see some change,” she said.Ali underscored that a proper ban on the test requires penalty for non-compliance, otherwise it will remain unimplementable.