• The Supreme Court deprecated the “regressive” and “invasive” practice of the “two-finger test” on rape survivors and said it has no scientific basis and instead re-victimises women who may have been sexually assaulted, and is an affront to their dignity.

• A bench of Justices D.Y. Chandrachud and Hima Kohli said it is “patriarchal” and “sexist” to suggest that a woman cannot be believed when she states that she was raped, merely for the reason that she is sexually active.

• The SC bench made the remarks in a judgment on a plea of the Jharkhand government in which it challenged the acquittal of one Shailendra Kumar Rai alias Pandav Rai of rape and murder charges.

• While examining the victim, the medical board conducted what is known as the “two-finger test” to determine whether she was habituated to sexual intercourse.

Key points in SC judgment:

• Whether a woman is “habituated to sexual intercourse” or “habitual to sexual intercourse” is irrelevant for the purposes of determining whether the ingredients of Section 375 of the IPC are present in a particular case.

• The so-called test is based on the incorrect assumption that a sexually active woman cannot be raped.

• Nothing could be further from the truth – a woman’s sexual history is wholly immaterial while adjudicating whether the accused raped her. 

• Further, the probative value of a woman’s testimony does not depend upon her sexual history.

• It is patriarchal and sexist to suggest that a woman cannot be believed when she states that she was raped, merely for the reason that she is sexually active.

• The legislature explicitly recognised this fact when it enacted the Criminal Law (Amendment) Act 2013 which inter alia amended the Evidence Act to insert Section 53A. 

• In terms of Section 53A of the Evidence Act, evidence of a victim’s character or of her previous sexual experience with any person shall not be relevant to the issue of consent or the quality of consent, in prosecutions of sexual offences.

Health ministry’s guidelines

The ministry of health and family welfare have issued guidelines for health providers in cases of sexual violence. These guidelines proscribed the application of the “two-finger test”.

The guidelines state that:

• Per-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 has no bearing on a case of sexual violence. Per vaginum examination can be done only in adult women when medically indicated.

• The status of hymen is irrelevant because the hymen can be torn due to several reasons such as cycling among other things. An intact hymen does not rule out sexual violence, and a torn hymen does not prove previous sexual intercourse. Hymen should therefore be treated like any other part of the genitals while documenting examination findings in cases of sexual violence. Only those that are relevant to the episode of assault (findings such as fresh tears, bleeding, edema, etc) are to be documented.”

Lillu v/s State of Haryana case

• In Lillu vs State of Haryana judgment in April 2013, the Supreme Court held that the “two-finger test” violates the right to privacy, integrity, and dignity.

• The rape survivors are entitled to legal recourse that does not retraumatise them or violate their physical or mental integrity and dignity. 

• They are also entitled to medical procedures conducted in a manner that respects their right to consent. 

• Medical procedures should not be carried out in a manner that constitutes cruel, inhuman, or degrading treatment and health should be of paramount consideration while dealing with gender-based violence. 

• The State is under an obligation to make such services available to survivors of sexual violence. 

• Proper measures should be taken to ensure their safety and there should be no arbitrary or unlawful interference with their privacy.

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