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TWO FINGER TEST

Introduction

Two finger test became a very familiar term recently as it was flashed in the media by the news channels because of the order passed by Supreme Court on 31st October 2022 to ban this test. But very few are familiar with its meaning and the process. So, What is Two finger test or “per vaginum”? When and why is it used? Does it have any scientific grounds? Why did Supreme Court pass this order? When was this issue 1st pointed out and by whom? Which was the 1st state to ban “two finger test”? Answer to all of these questions can be found below.


Meaning and Procedure of the Test

A “per vaginum” test is an explicitly unwanted/undesired test performed on rape victims to physically examine their vagina by inserting two fingers inside it to make sure that the hymen of that rape survivor is intact and to check whether the size and laxity of the vaginal opening qualifies to be considered as of a women who is a rape victim.


It is a test that classifies women into categories such as,

- who were engaged in any sexual activity or penetration,

- who has been subjected to sexual intercourse,

- who are virgin, etc.



Two-finger test and its Reliability in Science

This test is not scientifically supported, as studied and proven by doctors. It thrives on the outdated concept for determining the sexuality of a women. Whereas, a hymen is just a thin wall/ membrane of vagina which can also be ruptured by routine activities and exercises that does not include any sexual intercourse. In case of children or minor victims of rape, the hymen is so deep-seated that it stays intact even after penetration or sexual assault.

Doctors also state that the laxity of the vagina also depends on the psychological state of a women. For example, in case of a destressed situation like rape, the vaginal muscle looks tensed. The fact that the test by determining whether the women is “habitual” to sex or not, decides if a women can claim to be raped on the bases of her sexual history is very immoral and unethical. It also evidently violates the right of a women to privacy and dignity.

The rape victims in India were subjected to this test even after the Supreme Court in May 2013, banned the two-finger test on the grounds of right to privacy and the WHO and United Nations (UN) Human Rights in 2018, declared the two-finger test to be “medically unnecessary, painful, humiliating and traumatic”.


Two-finger test and Judicial response on the test

Right after the 2012 Nirbhaya case the Verma committee formed by the CJI JS Verma suggested to ban the two-finger test as it morally incorrect to put women through such traumatising procedure after the horrifying incident that she has faced. Followed by which it was made illegal in the year 2013 in the Criminal Laws (Amendment) Act, 2013.

Even the Supreme Court bench of Justice DY Chandrachud and Hima Kohli was stunned to know that such disturbing practice still continued in India, in the case of State of Jharkhand vs Shailendra Kumar Rai @ Pandav Rai.

The Apex court by challenging the order of High Court of Telangana, stated that the “two-finger test” must not be continued as it does not have any scientific grounds and it does not prove or disapprove the allegations of rape. Instead, it traumatises and victimises the women who are already disturbed and it also directly aims at the dignity of women by characterising them. The bench said that it is sexist and patriarchal to claim that the women is not a rape victim merely because she is sexually active. They also observed that being “habituated” to sexual intercourse or not is no way a contributing factor of Section 375(rape) of IPC and the sexual history of a women does not increase or decrease the “probative value” of her testimony.


First man to challenge this concept, its impact and his journey

The concept of two-finger test was first challenged by a young forensic expert from Sewagram, Dr Indrajit Khandekar who had to interact with many rape victims as a part of his job mostly for the two-finger test mandated by law and suggested in the medical textbooks for determining the sexual history of the women.

He was disturbed by the fact that these traumatised women were being touched in their intimate areas without their consent for something which does not even scientifically contributes to their claim of being raped.

This 44year old doctor first raised his voice for the rape victims in 2010. He was also mocked initially by his seniors for wasting his energy and resources on something which would bring no change in the society or won’t be heard/ considered as it was brought up by a junior doctor from a small town.

The matter was considered and a medical report of 258 pages was prepared describing why the test should be discontinued and had no scientific grounds after nine long months of research and this report formed the basis of the public interest litigation (PIL) filed by Dr Khandekar in 2010 in the Bombay High Court.

Maharashtra became the first state to ban the practice of two-finger test on the rape victims in the year 2011. Regulatory guidelines were also issued by the government in 2013 for the change in procedure of examination of rape victims and the two-finger test was banned in the same year by the apex cout.

Dr Khandekar said that the medical text books still continued to prescribe this test for determining the sexual history of a women due to which he approached the Indian Council of Medical Research (ICMR) for the same. He was appointed by the ministry of health and family welfare to draft the guidelines that would make the required changes in the ones that were issued in 2014. Eventually the books were replaced in the year 2019 by the Maharashtra University of Health Sciences.


References:



This article is written by Komal Majethia of Mumbai University.

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