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Supreme Court deprecates two-finger test on rape victims; if conducted will be construed as misconduct

New Delhi : A bench of justices Dhananjaya Y Chandrachud and Hima Kohli while hearing Lillu vs State of Haryana case of 2013 observed that any person who conducted the ‘two-finger test’ or per vaginal examination shall be held guilty of misconduct. The court was hearing the appeal to a judgment of the High Court of Jharkhand which set aside the conviction of a rape accused. The court also said that the evidence of a survivor’s character or of their previous sexual experience with any person shall not be relevant to the issue of consent.

As parting remarks, the judges made important observations regarding the two-finger test and passed orders regarding the same. Stating that the Medical Board, while examining the girl, had conducted the ‘two-finger test’ to determine whether she was habituated to sexual intercourse, the court pointed out that it had time and again deprecated the use of this regressive and invasive test in cases alleging rape and sexual assault. “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 said.The unscientific test involves the insertion of two fingers into a person’s vagina to test the laxity of vaginal muscles. This is used to determine the ‘virginity’ of the woman.

The facts of the case are that the session court had sentenced the rape accused Pandav Rai for life as well as rigorous imprisonment for 10 years, both of which were directed to run concurrently. However, hearing the appeal filed by Pandav Rai, the Jharkhand HC set aside the judgment of the Sessions Court and acquitted him. One of the reasons for the acquittal was stated as that “Dr Minu Mukherjee did not find any sign of sexual intercourse when she examined the victim”. The Supreme Court set aside the HC order and convicted Pandav Rai of the offences, the court said that while it does not ordinarily interfere with orders of acquittal passed by High Courts, it may exercise its power to do complete justice and reverse orders of acquittal to ‘avert a miscarriage of justice’.