By Dr Swati Jindal Garg
“Don’t think about making women fit the world— think about making the world fit women!”
In a major relief for women, a bench of Justice DY Chandrachud (now CJI) and Justice Hima Kohli prohibited the use of the inhumane “two-finger test” in cases of rape and sexual assault and observed that it was “regrettable” that such a practice continued. The Court further said: “This court has time and again deprecated the use of two-finger test in cases alleging rape and sexual assault. The so-called test has no scientific basis.” Stressing that the test re-victimises and re- traumatises the women, the Court warned that, “the two-finger test must not be conducted.”
In a case it was hearing, the Court also held that the practice of the two-finger test was patriarchal and sexist and then went ahead to restore the conviction and sentencing of a man for the rape and murder of a minor girl in Jharkhand in November 2004. The girl who had been set on fire when she tried to thwart the convict’s attempts to sexually assault her was later subjected to the two-finger test in the hospital to add insult to her injury.
The two-finger or the virginity test, as it is also sometimes called, dates back to the pre-1979 era where the United Kingdom followed a protocol for medical examination of women who were immigrating to their country to marry their fiancées. The said practice, however, was hugely criticised when an Indian woman landed at Heathrow Airport and had to undergo an extensive medical examination due to her plans to settle in Britain after marrying her fiancée who was a Britisher of Indian origin. The immigration officer was doubtful that this was her first marriage and was somewhat sure of her having children already and hence conducted the two-finger/virginity test on her. A disciplinary action was ordered against the immigration officials who were suspected of having carried out these tests after the matter was publicised in the newspapers and a statement was recorded by Indian High Deputy Commissioner at that time asking the British government to ban this practice as it was outrageous and was carried nowhere else in the world.
The two-finger test is basically conducted to check whether the victim of sexual assault has had recent sexual intercourse and includes an inspection of the hymen. The test is not only ethically wrong, but is also medically flawed as the status of the hymen cannot be the sole decisive factor of the presence or lack sexual activity. As a medical journal states, hymen can be torn due to several reasons from cycling to riding to masturbation. Research even shows that an intact hymen doesn’t rule out sexual assault and a torn hymen doesn’t really mean a sexual intercourse in the past. A commonly accepted fact is that some women are even born without hymen. Placing a high reliance on the two-finger test to ascertain the act of sexual assault after having knowledge of these medical facts is hence absurd.
India being a patriarchal society has a wide history of such virginity tests being conducted, one of which was called “Kukari ki Rasam” or the thread ritual. A skein of thread is used to detect the presence of the hymen; if it’s not detected, the bride is considered impure. She is often beaten up to reveal the name of her lover and the male partner is often forced to pay money to the bride’s family.
This practice, even though it may sound old and outdated, is surprisingly still going on in rural areas of India which are largely out of the reach of the media and the police. Modified versions of many such tests that determine the purity of a woman still exist across India and those who thought this practise ended with Goddess Sita giving her agnipariksha are in for a rude awakening.
In fact, in 2013, in a mass marriage ceremony which was being organized under the state chief minister’s scheme which helps girls from poor families to marry at government expense conducted in Madhya Pradesh, more than 350 brides were made to undergo a virginity test. Minutes before the garlands were to be exchanged, district officials asked the girls to undergo this test to avail the scheme which paid for all their marriage expenses. The tests were conducted in the presence of many government officials and none of them came forward to oppose it.
The Justice Verma committee set up under former chief justice of India JS Verma, after the December 16 rape case to call for tougher laws, mentioned that “it is crucial to underscore that the size of the vaginal introitus has no bearing on a case of sexual assault, and therefore a test to ascertain the laxity of the vaginal muscles which is commonly referred to as the two-finger test must not be conducted. On the basis of this test observations/conclusions such as ‘habituated to sexual intercourse’ should not be made and this is forbidden by law.” However, no big steps have been taken against this practice till date. Despite the test being made illegal under the Criminal Laws (Amendment) Act, 2013, its implementation is highly questionable as it still finds presence in many medical books and is even a part of the syllabus of many medical schools.
Following the Justice Verma Committee and the 2013 Criminal Laws Amendment, the Union Health Ministry also released a document titled: “Guidelines and Protocols, medico-legal care for survivors/victims of sexual violence” in 2014 that says that: “Pre-Vaginum examination commonly referred to by lay persons as ‘two-finger test’, must not be conducted for establishing rape/sexual violence and the size of the vaginal introitus [opening] has no bearing on a case of sexual violence. Per vaginum examination can be done only in adult women when medically indicated.”
However, as these guidelines are not legally binding, they have not been successful in totally uprooting this test from the medico-legal world. Despite all the work done, we are still far from our goal of the absolute abolition of this practice.
The latest verdict passed by the apex court is more than welcome. However, this is not the first time that the Supreme Court has spoken against the two-finger test. A 2013 Supreme Court order had also noted in a similar tone as the recent judgment by saying: “Undoubtedly, the two-finger test and its interpretation 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 judgment comes 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. Even though at that time, a rape test kit, detailing tools required to collect evidence of sexual assault, according to the World Health Organization guidelines, was prepared, it failed to make any impact, and in the absence of these kits, the two-finger test continued its onward journey of demeaning and re-traumatising the already victimised women.
While the defence lawyers use an “affirmative” two-finger test to question a woman’s character and refute allegations that sex was non-consensual, it is needless to say that such patriarchal assumptions have contributed to victims losing cases. Taking note of this very practice, the Supreme Court in its latest judgment has also held that “the probative value of a woman’s testimony does not depend on her sexual history. It is patriarchal and sexist to suggest that a woman cannot be believed when she states that she was raped merely because she is sexually active.”
With an advancement in science and technology, the medical curriculum also has to keep pace with changes in the society and law. The text books too need to be amended suitably and hence many textbook of forensic medicine that still continue to carry old, outdated information and the two-finger test need to be amended accordingly. If the changed standards of practice do not reflect in a changed syllabus, it will be extremely difficult for the new doctors to learn the right things.
Keeping this in view, in August, this year, the country’s top medical education regulatory body, National Medical Commission, made modifications to modules for forensic medicine, including guidelines about the two-finger test. The body further clarified that students will be apprised to explain to the court about the unscientific basis of these tests if the same are ordered to be conducted.
Creating awareness at the grassroots level is the best, if not the fastest method, to bring about change. Observations made by the Supreme Court, along with the necessary changes in the medical curriculum and the growing awareness among the public at large will culminate in bringing about the much needed winds of change and in creating a world that we all need.
—The author is an Advocate-on-Record practising in the Supreme Court of India, Delhi High Court and all District Courts and Tribunals in Delhi