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Two Finger Test: An Infringement To individual's Privacy

The term "Two Finger test" is used by my medical practitioner for a test performed on rape victims, to check their sexual behavior, whether they are habitual to sexual intercourse or not, the practicality of this test is observed as invalid as it does not have any scientific validity or any scientific ground to back it up the supreme court have tried to stop this test with the aid of cases like Nirbhaya case in 2012, Lilu V state of Haryana 2013.

The supreme court made the "two-finger test" under the Criminal Laws (Amendment) Act, 2013 illegal, and once again in the case of State of Jharkhand vs Shailendra Kumar Rai supreme court expressed its view on the two-finger test supreme court prohibited the two-finger test and who so ever performs the test will be guilty of misconduct supreme court quoted "it is regrettable that "two-finger test" continues to be conducted even today, a bench comprising Justices DY Chandrachud and Hima Kohli" stated in a recent judgment.

Two-Finger Test

"Two-finger Test" is an unscientific and traumatizing test done by a medical practitioner on a rape survivor, in the two-finger test the medical practitioner inserts two-finger in the vagina of a rape survivor in an attempt to determine if the hymen is broken and laxity of the women vagina, the test is often used to determine if the rape survivor is habitual to sexual intercourse,

This test is used to counter the validity of rape allegations made by the rape survivor as the medical test provides for the medical report of past habitual sexual inter-course so the medical evidence of past habitual sexual intercourse is often used to cast a doubt on the rape allegations made by rape victim either to suggest that the survivor lied about the allegations, or to suggest rape was not harmed full, or to imply the moral impropriety of a survivor or her lack towards entitlement of justice.
  1. Scientific validity Procedure
    The Two-finger test does not hold validity in scientific terms as the test depends on the archaic concept on which the hymen is checked whether the hymen is intact or not test is performed by insertion of two fingers in the vagina, the study is shown that the hymen remains intact on the insertion or penetration, even in the cases of rape of young girls the hymen is deep-rooted that even after penetration it remains intact and study prove the hymen can be broken during playing doing exercises and other physical activity produced in the vagina so the test does not hold any validity and have any scientific backing.
  2. Problem with Two-Finger Test
    The two-Finger test is a test based on the laxity of a woman's vagina, the laxity of a woman's vagina changes as it is further influenced by the psychological state of a woman it goes under changes when a person goes under tense conditions, further the test is used to establish a sexual intercourse history which will be further used to establish a question against an appeal made by the rape victim,

    On moral and on the ethical level the test is also an infringement of the privacy of a personal individual's dignity even after going through the horrific experience of rape, even after that she is subjected to the test of insertion and her claim is questioned before the court if the allegation made by her is correct or not
  3. Infringement of individual's personal life, Dignity and Integrity
    Article 21 of our Indian constitution provides us the freedom to have privacy in life and live with dignity, rape is a horrific offense the words are not enough to explain the horror of the crime the person is both physically and mentally traumatized after that experience survivor is subjected to the test to check the validity of allegations made by her, this test violates the individual's article 21 in mainly two ways:
    1. She is tested for habitual of sexual intercourse her personal life and activity is been questioned based on this test, even after such a horrific experience her allegations and words are questioned regarding the crime. Affecting her personal life and her activity.
    2. This test says that if a woman is habitual to sexual intercourse then the rape allegations would not be challenged or hold the same validity, her consent towards the sexual intercourse is challenged, and her individual dignity and choices are questioned.
In these two ways article 21 is infringed by the "Two-Finger Test" in the judgment of lilu V state of Haryana the court held that the Two-Finger test violates individual Right to Privacy, Integrity, and Dignity.

Action of legislation and judiciary:

  1. After the Horrific case of Nirbhaya (2012), the Verma committee was formed under CJI JS Verma recommended the banning of the Two-Finger test and quoted,

    "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," the Committee stated."
  2. In 2013 the apex court held that Two finger test violates women's personal right and individual freedoms and advised the medical practitioner to find another way to confirm the allegations made by the victim suggesting banning the Two-Finger test.
  3. A bench of Justice BS Chauhan and Justice FMI Kalifulla said, "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."
  4. In 2013, under the Criminal Laws (Amendment) Act, 2013, the test was made illegal.
  5. In case of Lilu V State of Haryana (2013) the court held that the Two-Finger test violates the individual's personal life integrity and dignity.
  6. In case of State of Jharkhand V Shailendra Kumar Rai the bench of apex court led by the justice DY Chandrchud and Hima Kohli quoted that "is regrettable that "two-finger test" continues to be conducted even today

Landmark Case laws
  1. Nirbhaya case (2012)
    On the dark cold night of 16th December 2012 23 year old was brutally assaulted and gang raped in a moving bus of south Delhi, Jyoti Singh a physiotherapy intern was returning with her friend after watching a movie, in the bus she was assaulted gang raped and tortured by four persons on the night of 16th December 2012.
  2. Lillu V state of Haryana (2013)
    In this case law the supreme court observed the illegality and inhumanity of the two finger test applied to test the allegations of the rape victims.
  3. State of Haryana V Shailendra Kumar Rai (2004)
    In this case, respondent raped the victim and when she cried for assistance the respondent dozed her in kerosene and set her ablaze later on she was founded in the house by her family members she was admitted to the Sadar hospital and the respondent was charged under section 376of IPC and sent to 10 years rigorous imprisonment.

The Two-Finger test is an immoral and traumatizing experience for women she is subjected to this test even after she is survived the horrific experience of rape the test is not backed by any scientific research or any scientific backing and the test also promotes the thinking of a patriarchal society that if she is habitual to sexual intercourse then the rape would not harm and this thinking is promoting the dark side of society, later on the judiciary.

In many different case laws said and guided the legislation, in making of laws against the Two-Finger test and in the recent judgment of the supreme court the court made the two-finger test illegal. And if anyone is found performing the test, he will be held guilty of misconduct and will be tried in court.


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