Unconstitutionality of 2-finger test – By SOHINI BISWAS

In view of International Covenant on Economic, Social, and Cultural Rights 1966;

The United Nations Declaration of Basic Principles of Justice for Victims of Crime and Misuse of Power 1985 provides rape survivors with the right not to traumatise or infringe on their dignity and integrity in physical or mental ways. They also have right to do so in a way which complies with their right to consent. It should not take care of medical operations in a way that represents cruel, inhuman or humiliating treatment and health in relation to sexual violence.

The Justice Verma Committee Report has also recommended the discontinuation of the two-finger test which is conducted to determine the laxity of the vaginal muscles. The Supreme Court has through various judgments held that the two-finger test must not be conducted and that the previous sexual experience of the victim should not be relied upon for determining the consent or quality of consent given by the victim.

State of Karnataka vs. Krishnappa

Court pointed out that rape is not merely a physical assault, it is an offence which is destructive of the whole personality of the victim of crime and Courts shoulder a great responsibility while trying an accused on charges of rape and must deal with such cases with utmost sensitivity.

“The physical scar may heal up, but the mental scar will always remain. When a woman is ravished, what is inflicted is not merely physical injury but the deep sense of some deathless shame. The offender robs the victim of her most valuable and priceless possession that is dignity.”

In the case of Lilu and ors. vs. State of Haryana

“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.”

In 2013, the Apex Court considered the rights and privacy of women need to be acknowledged and it can certainly not give a licence to any person to rape her.
In State of Punjab v. Ramdev Singh
“Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity – it degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a woman, it is a crime against the entire society.”

The recent case of State Of Gujarat v. Rameshchandra Ramabhai Panchal

“Despite the aforesaid proviso, the two-finger test leading to the formation of the medical opinion regarding consent allows the past sexual history of the victim to cause prejudice to her testimony. The test itself is one of the most unscientific methods of examination used in the context of sexual assault and has no forensic value. Whether a survivor is habituated to sexual intercourse prior to the assault has absolutely no bearing on whether she consented when the rape occurred. Section 155 of the Indian Evidence Act, does not allow a rape victim’s credibility to be compromised on the ground that she is “of generally immoral character.”

Karnel Singh vs. State of M.P.
“A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injury in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration.”

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