'Two Finger Test' Unconstitutional As Violative Of Woman's Right To Privacy & Dignity : Gujarat HC

Full Judgment

The Gujarat High Court has held that the "archaic and outdated" practice of two-finger test, conducted to determine the virginity/consent of a rape victim, is unconstitutional.

The court held that the two finger test is violative of the right of the victim to privacy, physical and mental integrity and dignity. 

The court said,

"Our endeavour is to remind the trial Courts as well as the medical fraternity that the "two-finger test" is unconstitutional, as it violates the right of the victim of sexual assault to privacy, physical and mental integrity and dignity. If the trial Court comes across any such medical certificate, wherein, there is a reference of such a test, then it should take cognizance of the same and do the needful in the matter."

As per the bench of Justices JB Pardiwala and Bhargav D. Karia, the two-finger test is in direct conflict with the proviso to Section 146 of the Indian Evidence Act, which stipulates that "in prosecution for rape or attempt to commit rape, it shall not be permissible to put questions in the cross-examination of the prosecutrix as to her general immoral character."

"Despite the aforesaid proviso, the two-finger test leading to the formation of the medical opinion regarding consent allows the past sexual history of the victim to cause prejudice to her testimony.

…The test itself is one of the most unscientific methods of examination used in the context of sexual assault and has no forensic value. Whether a survivor is habituated to sexual intercourse prior to the assault has absolutely no bearing on whether she consented when the rape occurred. Section 155 of the Indian Evidence Act, does not allow a rape victim's credibility to be compromised on the ground that she is "of generally immoral character," the bench remarked.

The observations were made in a "unique acquittal appeal" where the trial Court realized its mistake in calculating the age of the victim at a very late stage. The court had recorded that the victim was above 16 years of age and hence, it went on to determine her consent by way of the two-finger test.

After pronouncing the judgment of acquittal and upon hearing the accused and the prosecution at the point of sentence however, the court realized that the victim was a minor. Therefore, the determination of the victim's consent was immaterial. In such circumstances, the trial Court found itself in a helpless situation as it could not have reviewed its order of erroneous acquittal or illegal acquittal so far as the offence of rape is concerned.

The High Court thus, in a state appeal, corrected the mistake committed by the Trial Court 25 years after the order of acquittal was passed and held the accused guilty of rape. The Court has asked him to personally remain present before it on January 31, when it is likely to sentence him.

Lastly reminding the State of its obligation in view of the International Covenant on Economic, Social, and Cultural Rights 1966 and the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985, apart from its statutory and constitutional obligation, the court said,

"the victim of sexual assault are entitled to legal recourse that does not traumatize them or violate their physical or mental integrity and dignity. They are also entitled to medical procedures conducted in a manner that respects their right to consent. Medical procedures should not be carried out in a manner that constitutes cruel, inhuman, or degrading treatment and health should be of paramount consideration while dealing with gender based violence. The State is under an obligation to make such services available to survivors of sexual violence. Proper measures should be taken to ensure their safety and there should be no arbitrary or unlawful interference with their privacy."

In 2013, the Supreme Court had observed in the case Lilu @ Rajesh v State of Haryana and another that the 'two-finger test' will violate the woman's right to privacy and dignity.

In December 2019, the Supreme Court again disapproved the use of this test in sexual offence cases and called for a report from state governments on a query as to whether it has been done away with.