Activists welcome SC reiterating ban on 'two-finger test' on rape survivors

On Monday, October 31, the Supreme Court (SC) of India once again called for a ban on the “two-finger” test of rape victims and warned that persons conducting such tests will be held guilty of misconduct.

A bench comprising of Justices DY Chandrachud and Hima Kohli made the observation in an order overturning the acquittal of a rape accused by the Telangana High Court.

The two-finger test is an unscientific and regressive practice where two fingers are inserted into the vagina to assess the laxity of vaginal muscles and examine the hymen. In rape cases, this test is used to gauge whether a woman is sexually active or a virgin.

“This test has no scientific value; the absence of the hymen and laxity of the vaginal orifice may occur for reasons unrelated to sex,” a British Medical Journal (BMJ) article notes.

In 2011, Maharashtra became the first state in the country to legally ban the two-finger test or virginity test. The government also issued a GR in 2013, laying down guidelines for the medical examination of rape survivors.

The same year, the SC had declared that the “two-finger test violates the right of rape survivors to privacy, physical and mental integrity and dignity”. “Probative value of a woman's testimony does not depend upon her sexual history," it said.

In 2018, the United Nations Human Rights Council, UN Women, and the World Health Organization (WHO) called for a ban on the two-finger test in order to eliminate violence against women and declared it as 'medically unnecessary', often times painful, humiliating, and a traumatic practice that must end.

It is regrettable that such tests continue to be conducted even today, the SC bench lamented while restoring conviction in a rape case.

DY Chandrachud, who will take over as the Chief Justice of India on November 9, called the practice ‘patriarchal’ and ‘sexist’ while ordering the two-finger test to be completely removed from the syllabus of medical education. 

Calling out the test for having no 'scientific basis', Chandrachud observed that the test not only re-traumatised and re-victimised women but was actually “based on an incorrect assumption that a sexually-active woman cannot be raped. Nothing can be farther from the truth.”

“Evidence of a victim’s sexual history (is) not material to the case. It is regrettable that it continues to be conducted even today,” he added.

Adsa Fatima, an activist working with Sama, a resource group for women and health, said the healthcare system is a place that is considered safe , a location that women often access even if for just routine healthcare services.

“Through something like a two-finger test, you can see the systemic prejudice and biases in a very tangible form. You speak to any survivor, and they’ll speak of their struggling journey with the system including the healthcare system,” she said. 

“We welcome the aspect of the judgment where they [the court] accepted that despite the fact that the ban was put a decade ago, this was still happening. It is outrightly misogynistic and discriminatory,” she said, adding that these are the same patriarchal biases that have been there in society and are often passed on to systems including medical education.

“This judgment is crucial as it reiterates that while directing the union and state governments for the implementation of the guidelines,” she added.

Soon after the SC's observation, social media platforms including Twitter were flooded with reactions from people supporting it.

#MeTooIndia, while supporting the decision wrote, “The two finger rape test is patriarchal, and those doing it will be held guilty — extremely important judgment from Indian Supreme Court.”

The SC has directed the Union Health Ministry to ensure that the two-finger test was not conducted on rape survivors. It also asked the Central and state governments to relay the information to all government and private hospitals while also directing conducting of workshops for health providers to communicate appropriate procedures examining survivors of any sexual assaults. 

Activist Anuradha Kapoor told National Herald that the two-finger test used routinely against women was a way of maligning the character of women. 

“There have been SC and HC [judgements] against using this test but this is the first time they said ‘strict action’ will be taken. There are consequences now — it’s positive change,” she said

Moreover, she said that in order to empower rape survivors, the process of reporting the crime should be made more sensitive while not forcing women to go through the ordeal repeatedly. 

“The court proceedings should be quick and there should be an immediate judgment. A woman needs to get on with her life and even the witnesses forget the entire story. Women need to get rid of the trauma but the continuous trial doesn’t let them forget,” she said.

“A woman going through rape should not be re-victimised and re-traumatised,” she added.