Supreme Court says two-finger test violates victim’s privacy and dignity

In a judgment delivered on April 9, 2013, a Division Bench of Justices BS Chauhan and FM Kalifulla observed that the “two finger test” used in cases of rape, “violates the right of rape survivors to privacy, physical and mental integrity and dignity.” The judgment was delivered in the case of Lillu v State of Haryana where the Appellant had been convicted of the offence of rape and sentenced to seven years of imprisonment..The case dealt with the rape of a fourteen-year old girl in Jind District, Haryana. It was the Appellant’s case that the medical examination (including the 2-finger test) supported the conclusion that the victim was “habitual to sexual activities”..Examining this plea and referring to international resolutions such as the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985, the Bench held that,.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.…Thus, in view of the above, 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..Explaining the repercussions of this judgment, Prof. Mrinal Satish of the National Law University, Delhi said that although there was no express declaration that the two finger test was un-constitutional, “by ruling that the test violates a rape survivor’s right to privacy, dignity, as well as physical and mental integrity, the ruling by implication requires that a halt be put to the procedure.” However, Prof. Satish is quick to add that at the same time, the judgment also says that the report of the two-finger test does not ipso facto give rise to a presumption of consent. “This creates a confusion as to the scope of the prohibition.”.In conclusion, Prof. Satish says that the judgment is a ‘positive first step’ but at the same time, the Court should “expressly ban doctors from conducting the test on rape survivors for any purpose.”.The full text of the judgment is available below: