The Supreme Court (SC) bans on the Two-Finger Test

Syllabus: General Studies Paper 2

The Supreme Court on Monday declared that any person conducting the invasive ‘two-finger’ or ‘three-finger’ vaginal test on rape or sexual assault survivors will be found guilty of misconduct.

• A 2013 SC order had noted in a similar tone.
• Evidence of a victim’s sexual history is not material to case.

About the verdict

• The sole reason behind using the “regressive” test on traumatised sexual assault survivors is to see whether the woman or girl was “habituated” to sexual intercourse. 
• Such a “concern” was irrelevant to fact whether she was raped or not.
• The faulty logic behind the test was that “a woman cannot be believed when she said she was raped merely for the reason that she was sexually active.
• “This so-called test has no scientific basis and neither proves nor disproves allegations of rape. 
• It instead re-victimises and re-traumatises women who may have been sexually assaulted, and is an affront to their dignity. 
• The court pointed out the 2013 amendment of Section 53A in the Indian Evidence Act.  “…the evidence of a victim’s character or her previous sexual experience with any person shall not be relevant to the issue of consent or the quality of consent in the prosecution of sexual offences.
• The practice questions a woman’s character and is ‘patriarchal’ and ‘sexist’.
• It violates the right of rape survivors to privacy, physical and mental integrity and dignity.
• Thus, this test, even if the report is affirmative, cannot ipso facto, be given rise to presumption of consent.
• This came on the heels of the December 2012 Nirbhaya gangrape case, after which the Union health ministry updated the proforma for medical examination of rape victims to remove the  two-finger test.
• A rape test kit, detailing tools required to collect evidence of sexual assault according to WHO guidelines, was prepared but failed to make any impact. In the absence of these kits, the two-finger test continued as is.
• The latest order creates the connection which was missing till now. Now medical text books will have to  keep pace with legal changes and that will benefit young doctors and society at large.

Indian Evidence Act

• Originally passed in India by the Imperial Legislative Council in 1872, during the British Raj.
• When India gained independence on 15 August 1947, the Act continued to be in force throughout the Republic of India.
• It contains a set of rules and allied issues governing admissibility of evidence in the Indian courts of law.

This Act is divided into three parts:

• Part 1 deals with relevancy of the facts
• Part 2 deals with facts which need not be proved, oral evidence, documentary evidence.
• Part 3 deals with burden of proof, estoppel, witnesses and their examination
• Under Section 155(4) of the Indian Evidence Act, a rape survivor’s past sexual history used to be acceptable. The rape accused could state that the rape survivor was of immoral character and claim that she consented to the sexual acts.
• This section was removed in 2003 after recommendations in the Law Commission of India’s 172nd report.
• In 2013, the JS Verma Committee, created after the Nirbhaya gangrape case 2012, suggested that a past relationship between the accused and the victim should be inapt while deciding whether the victim consented.