The Delhi high court on 7/02/2023 held that forced virginity test on persons in police or judicial custody is unconstitutional stating that strangely, though the word “virginity” may not have a definite scientific and medical definition, it has become a mark of purity of a woman.
Underscoring that Article 21 is not suspended during the investigation, the court granted liberty to Sister Sephy to seek compensation for the violation of her human rights after the criminal case is over.
“It is declared that the virginity test conducted on a female detainee, accused under investigation, or in custody, whether judicial or police, is unconstitutional and in violation of Article 21 of the Constitution which includes the right to dignity,” said the single bench of Justice Swarna Kanta Sharma stating that there “cannot be two sets of views regarding the test of virginity being in violation of fundamental right” of a victim of sexual assault and a woman under investigation.
According to the petition filed by Sister Sephy in 2009, she was forcefully subjected to undergo virginity test by the CBI in November 2008 against her consent. “The intrusive testing procedure does not have a medical standing. Despite being inaccurate and there being definite studies that in some women hymen may not tear during vaginal intercourse, while in others they may tear even without vaginal sexual intercourse due to sports and other activities and some women may not even have one, such test has been conducted,” the bench observed.
The court further stated that it is not impressed with the argument of the law enforcement agency that the virginity test was necessary to uphold the laws since this argument itself flouts basic principles that a person’s dignity even in custody has to be upheld.
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