Virginity Test on accused women unconstitutional: Delhi High Court [READ JUDGMENT]

The Delhi High Court on Tuesday declared that the 'virginity test' conducted on a female detainee or accused is unconstitutional and in violation of Article 21 of the Constitution. .The Court said that conducting virginity test not only amounts to interference with the bodily integrity of a woman but also has psychological impact and will have serious and profound effects on her mental health. Justice Swarana Kanta Sharma said that test brings forth the "undesirable and abhorrent notion of differentiation on the basis of gender and stereotypes" and amounts not only to interference with bodily integrity of a woman but also psychological integrity. "Virginity testing is a form of inhuman treatment and the same violates the principle of human dignity. The test, being violative of right to dignity of an individual, cannot be resorted to by the State and the same shall be in teeth of the scheme of Indian Constitution and the right to life enshrined under Article 21," the Court declared. .In a detailed judgement, Justice Sharma rejected the argument that conducting this test on a woman who is victim of sexual assault and on a woman who may be an accused of an offence will be on different footing."Some fundamental rights cannot be suspended or infringed or abridged even when a person is in custody and right to dignity is one such fundamental right which falls within the ambit of Article 21," the judge underlined. .Justice Sharma passed the order in a case concerning the virginity test conducted by the Central Bureau of Investigation (CBI) on sister Sephy, a nun who was convicted in the sister Abhaya murder case.Sister Sephy was among those convicted by a Special CBI Court in Kerala in 2020, for the murder of another nun, sister Abhaya in 1992..In the trial court verdict, the judge had concluded that sister Abhaya was killed after she witnessed a priest (also convicted in the case), Father Thomas Kottoor and sister Sephy in a compromising position. Having witnessed this, she was hit on the head with a 'hand axe' and thrown into a well to cover up the cause of her death, the trial court had found.The trial court was also told that sister Sephy had undergone a gynecological procedure to cover up the fact that she had engaged in sexual intercourse. The Court noted that the procedure was done “on the eve” of her arrest by the CBI.In 2008, after her arrest in the case, Sephy accused the CBI of having conducted a virginity test on her without her consent. .The Delhi High Court, while holding that the virginity test so conducted was unconstitutional, added that sister Sephy may avail legal remedies against the CBI for her alleged defamation. On the issue of her prayer for action against the CBI for conducting the virginity test on her, the Court said that the test was not barred in law at the relevant time.With regard to the issue of grant of compensation, the bench said that the National Human Rights Commission (NHRC) will consider afresh the representation filed by Sister Sephy regarding custodial torture once the criminal trial concludes..Justice Sharma also ordered that the information about the test being declared unconstitutional should be circulated to all investigating agencies through Ministry of Home Affairs (MHA) and Ministry of Health and Family Welfare (MoHFW).The bench directed the Delhi Judicial Academy to include this information in its curriculum and in the workshops for investigating officers, prosecutors and other stakeholders."The Delhi Police Academy for Training shall also include the necessary information regarding this issue in its training curriculum. The Commissioner of Police, Delhi is also directed to ensure that the investigating officers are informed and sensitized in this regard," the Court ordered. .Advocates Romy Chacko, Varun Mudgal and Sudesh Kumar appeared for Sister Sephy. Special Public Prosecutor Ripu Daman Bhardwaj and Kushagra Kumar appeared for the CBI. Central Government Standing Counsel Kirtiman Singh along with advocates Waize Ali Nook, Madhav Bajaj and Kunjala Bhardwaj appeared for the Central government. NHRC was represented through advocates S Nanda Kumar, Deepika Nanda Kumar and Anand Murthi Rao. .[Read Judgment]