Madras High Court directs State to immediately ban two-finger test used on survivors of sexual offences

The Madurai Bench of the Madras High Court on Thursday directed the State government to immediately ban the practice of the two-finger test conducted by medical professionals on survivors of sexual offences [Rajivgandhi v The State]..A Bench of Justices R Subramanian and N Sathish Kumar was considering an appeal in a case under the Protection of Children from Sexual Offences Act (POCSO Act), 2012 when counsel for both sides pressed for a ban on practice. The Court noted that the Supreme Court, in several decisions, had held the test to be unconstitutional. It thus deemed it necessary to issue a direction to the State government to end the practice."In view of the above judicial pronouncements, we have no doubt that the two finger test cannot be permitted to be continued. Therefore, we issue a direction to the State Government to ban the practice of two finger test on victims of sexual offences by the medical professionals forthwith," the judgement stated..Some of the precedents that the Court referred to included the 2013 decision of the Supreme Court in Lillu @ Rajesh & Anr. v State of Haryana, in which it was held that the two-finger test and its interpretation violates the right of rape survivors to privacy and physical and mental integrity and dignity.Again, in Re : Assessment of the Criminal Justice System in response to Sexual Offences, the Supreme Court 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 Court also noted that High Courts in other states had also deprecated the practice. The Gujarat High Court in State of Gujarat v Rameshchandra Ramabhai Panchal held that the two-finger test is the most unscientific method of examination used in the context of sexual assault and has no forensic value..We have no doubt that the two-finger test cannot be permitted to continue.Madurai Bench, Madras High Court.The Court's judgment came in an appeal filed by a man against the order of a trial court convicting and sentencing him to life imprisonment for offences punishable under Section 5(i) [aggravated penetrative sexual assault] of the POCSO Act and Section 363 (kidnapping) of the Indian Penal Code. The prosecution case was that the accused had enticed a 16-year-old girl, kidnapped her and had repeated sexual intercourse with her.Counsel for the appellant, Advocate S Sivasubramanian contended that that the entire evidence, if read in a proper perspective, would show that the victim girl had gone with the accused on her own and that it was a consensual relationship, regardless of her age.He also pointed out some inconsistencies in the statement given by the doctor who examined the minor and administered a two-finger test..While opposing these contentions, Additional Public Prosecutor T Senthil Kumar submitted that the Supreme Court has deprecated the practice of the two-finger test. He opined that it was high time that the practice was stopped.The appellant's counsel concurred with this particular submission, and pointed out that the two-finger test has been held to be unconstitutional and that several states had banned it..On an examination of the facts and circumstances of the case, the Court found that the offence of kidnapping under Section 363 IPC would not be attracted.Regarding the conviction for the offences under the POCSO Act, the Court found that the prosecution had proved the foundational facts. Coming to the quantum of sentence, the Court opined that the sentence of life imprisonment was really harsh, and thus altered the sentence to 20 years' imprisonment. "The Criminal Appeal is partly allowed. The conviction and sentence for the offence under Section 363 IPC is set aside in toto. The conviction for the offences under Section 5(l) and 6(1) of the POCSO Act is confirmed and the life sentence is, however, reduced to 20 years of rigorous imprisonment. The fine of Rs.1,00,000/- and the default sentence of simple imprisonment for 3 months, is confirmed," the judgment stated..[Read Judgment]