The doctrine of the two-finger test is a practice that has been deemed very unnecessary in the medical field. It violates the rights of privacy, dignity, and the law, as well as the public's right to know what their doctor is doing with their private bodily fluids or bodily functions. This article analysis this brutal test and sorts out solutions, if this test has been or is still been carried out.

What is the two-finger test?

The two-finger test is also called per vaginum, it is an explicitly intrusive physical medical examination wherein a doctor inserts two fingers inside the vaginal of a rape survivor to check if the hymen is intact or not.

The two-finger test is performed by a doctor on a rape survivor to check the laxity of her muscles and determine if she has been sexually active or to assess whether she invited the assault on her leading to rape. This act is unscientific, unethical, unnecessary, and unhelpful in cases relating to rape and sexual assault.

An international uproar was sparked by the vicious gang rape of a student in Delhi, widely known as the "Nirbhaya gang rape case in December 2012." The international outrage catalyzed progressive legal amendments in India, including introducing harsher punishments for perpetrators and giving a wider definition of sexual assault. However necessary changes to the health system have been slower, despite the responsibility of doctors to provide medical and psychological help to victims.

Major attention has been focused on the two-finger test; this disturbing practice was originated in the 18th century and involves the insertion of both fingers into the vaginal. The insertion of one finger into the vaginal with difficulty is interpreted to determine if the victim was a virgin, while the insertion of two fingers suggests that the victim is habitual to sexual intercourse.

According to a bench of Justices D Y Chandrachud and Hima Kohli," The alleged 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 irrelevant when determining whether the accused raped her."

The erroneous notion that a sexually active woman cannot be raped serves as the foundation of the so-called test. After such brutal acts, a woman must be protected and rehabilitated. Nevertheless, when tests like this are being carried out it will be mostly considered more of a re-rape to the victim. Which would harm her right to privacy.

What Does The Law State Regarding Two-Finger Tests?

The two-finger test is a technique that has been disregarded in the healthcare sector as being wholly unneeded because it violates the rights to privacy and dignity as well as the law.

The Supreme Court while seeking to put an end to the invasive two-finger test directed the center and states to review the curriculum in medical schools to ensure that the practice is not one of the procedures required while examining rape survivors and sexual assault victims.

The right to privacy being an integral feature of the right to life and personal liberty under Article 21 is protected as part of the rights and liberties guaranteed by Part III of the Constitution.

As one of the basic human rights, the right to privacy is not treated absolute and may be lawfully restricted for the protection of morals, health, and disorder.

The practice of the two-finger test has been deemed to be a very unnecessary medical practice in law and the medical field, leading to the violation of human privacy, dignity, and law. The Supreme Court in " X V. Hospital Z, AIR 1999" referred to Article 8 of the European convention of human right which defines the right to privacy:

• Everyone has the right to respect his private and family life, his home, and his correspondence.

The World Health Organization also suggested that examination of women after rape should be minimally invasive and has also advised that any sort of medical examination is hardly necessary to be carried out on a sexual assault survivor.

Recent Judgments:
In Lilu Rajesh and Anr v. State of Haryana (2013), the Supreme Court ruled that the two-finger test should not be used because it is unconstitutional and that the victim's prior sexual experience should not be taken into account when determining the consent or the quality of the consent given by the victim.

After the Delhi gang rape case of Dec. 2013, Justice Verma Committee had recommended that the two-finger test is like another assault on the victim and the test should be stopped. The Delhi Government had conceded in its guidelines that two-finger tests should be banned for cases of sexual assault and advised doctors to counsel the victims. Two-finger test is not the only method of determining injury of genitalia and signs of penetration there are other more scientifically accurate methods.

Even after passing the guidelines for banning the two-finger test, on April 20th, 2014, just after the Delhi Gang Rape Case where a Dalit girl was gang raped and thrown out of a moving bus in Singrauli. Having conducted the two-finger test, the Madhya Pradesh police concluded and gave the statement in press media that the girl was habituated to sexual activity. This is a general assumption that the women habituated to sex may also lie about sexual assault.

Nearly ten years after originally urging a ban on the two-finger test in rape cases, the Supreme Court (SC) has done so again. It has been said that people who engage in it will be found guilty of misconduct

The observations were given in a Supreme Court judgment reversing the Telangana High Court's October 31, 2022 acquittal of a rape suspect. The bench was composed of Justices DY Chandrachud and Hima Kohli.

The practice was described as "patriarchal" and "sexist" by Justice Chandrachud. Chandrachud noted that the test was "based on a false notion that a sexually active woman cannot be raped," in addition to re-traumatizing and re-victimizing women. The victim's sexual history is not relevant evidence in this case. It is terrible that it still exists.

How The Medical Field Can Protect Itself From Legal Consequences:

One of the highest-value occupations in the world is in the medical field. If doctors observe the appropriate care, honesty, efficiency, and professional expertise, the practice of medicine can deliver a wonderful contribution to humanity. However, the doctor-patient bond has changed in modern times.

Doctors administer the two-finger test to lawyers who must defend the prosecution. Doctors should help victims recover rather than re-victimize them. The ministry of health and family welfare, the government of India has issued several guidelines and protocols for medico-legal care for survivors of sexual violence.

The guidelines provide:

• The Per-Vaginum test, also known as the "two-finger test," should not be performed.
• The size of the vaginal introitus has no bearing on the case of sexual violence, and pre-vaginal examinations can only be performed on adult women when medically indicated.
• The guidelines also state that the hymen's status is irrelevant because it can be torn due to other factors such as cycling and riding, among others. An intact hymen does not rule out sexual violence, nor does a torn hymen prove sexual intercourse.
• When documenting examination findings in sexual violence cases, the hymen should be treated as any other part of the genitals.
• In the case of an assault, only relevant findings such as fresh tears, bleedings, and bruises should be considered.

A complaint can be filed against the doctor who tries to perform the two-finger test during the medical test of rape victims by the medical council in India. The victim can file an online complaint at the Medical Council of India (MCI). The aggrieved party can lodge a complaint and can send their feedback by entering their name, the subject, and email address along with the complaint/feedback description in the form

The following procedure needs to be followed:

• When there is any professional misconduct by any medical practitioner who is registered under the Indian Medical Council, the appellate can file a complaint to the State Medical Council to initiate inquiry and action against the doctor. State Medical Council would then hold an inquiry and also allow the respondent to be heard.
   
• The Council has to decide against the Medical Practitioner within a time limit of 6 months. When the complaint is pending, the council may restrain the physician to perform the procedure which is under scrutiny.
   
• If the Medical practitioner is found guilty, the State Medical Council may award punishment to the practitioner as per the regulation.

If the State Medical Council does not take any decision within the time limit of 6 months, then the Medical Council of India may impress upon the State Medical Council to conclude and decide the complaint within a bound schedule or it may decide to withdraw the complaint and refer it to the Ethics Committee of the Council for its expeditious disposal in a period of 6 months.

References:

• Dr.Jagdish Singh, Vishwa Bhushan (2004), "medical negligence & compensation" Bharat publications (4th edition).
• Khambati, Nisreen (2014) "India's two-finger test after rape violates women and should be eliminated from medical practice" BMJ (Clinical research ed.)
• Aditya Verma "right to privacy" central information commission report on- Right to privacy
• Sunil Baghel, Alka Dhupkar (2022) "why supreme court stepped in again to stop two-finger tests" Timesofindia.com
• Shraddha Patidar, shewta (2018), "Two-fingerer test while examining a victim of sexual offenses" ipleader.com

End-Notes:

1. All rights reserved, do not quote or distribute without permission of the author.

Written By: Saibu Ewade - Student of Noida international university, BALLB 9th semester

Also Read:

• Two-Finger Test an Impertinent Approach
• Desist From Undertaking Two Finger Test, Avoid Disclosing Rape Survivors Identity: J&K HC Directs Trial Courts
• Rights of Rape Victims in India