Doctors face High Court Wrath for performing 2 finger test on Rape Survivor, slapped 5 lakh compensation

Shimla: Noting that the doctors at the Palampur Civil Hospital conducted the banned two-finger test on a minor rape victim, the Himachal Pradesh High Court recently slammed the doctors and directed the State to pay Rs 5 lakh compensation to the child and later recover the amount from the erring doctors. Apart from this, the court has also asked the State to hold an inquiry against all the concerned doctors.

Taking note of the medico-legal certificate issued by the Hospital, the HC bench comprising Justices Tarlok Singh Chauhan and Satyen Vaidya observed that the "two-finger test, which as per the medical term, is called "per-vaginum examination" is strictly prohibited under the guidelines and protocols, which are also adopted by the Government of Himachal Pradesh.

"Inspite of all this, the minor child victim in the instant case has been subjected to "two-finger test", which has violated her privacy, physical and mental integrity and dignity apart from creating fear and trauma to the child victim," noted the bench.

After considering the proforma of questions that the minor had to answer, the bench further observed, "What is still worse is that the child victim had to suffer untold miseries, especially when confronted with columns No. 4 and 5 of the MLC (supra), which apart from being humiliating are even self incriminating and in the given facts and circumstances, those irresponsible medical professionals, who designed the proforma and those, who medically examined the child victim, cannot be allowed to go scot-free and the child victim essentially and legally needs to be compensated."

The Court took note of the Medico-Legal Certificate while considering an appeal filed by an appellant convicted under Sections 376, 354 of the Indian Penal Code, Sections 6 and 14(3) of the Protection of Children from Sexual Offences (POCSO) Act, and Sections 66-E and 67-B of Information and Technology (I.T) Act by the Special Judge.

Referring to the columns of the Medico Legal Certificate, the court termed them to be "demeaning" and to a certain extent even "self-incriminating and self inculpatory" for the child victim.

"The gross insensitivity shown by all those, who had designed the MLC and its columns, cannot go unnoticed," noted the HC bench.

The Court referred to Columns no. 4 and 5 of the MLC where the child was asked if she was pregnant, if she had coitus before and whether she was a virgin. Referring to these, the bench noted, "We find columns No. 4 and 5 of the MLC in question not only to be demeaning, but even self incriminating, self inculpatory and hitting directly on the privacy of the child victim..."

Further, the bench observed that as if these questions were not enough, the doctors issuing the MLC in question even conducted the "two-finger test" on the victim "despite the fact that this test has been held to be violative of right of rape survivors to privacy, physical and mental integrity and dignity by the Hon’ble Supreme Court in Lilu @ Rajesh vs. State of Haryana..."

In that concerned case, the Apex Court bench had held that the two-finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity.

Again, the HC bench referred to the Supreme Court order in the case of Assessment of the Criminal Justice System in Response to Sexual Offences, and EERA vs. State (NCT of Delhi), (2017). In the second case, the top court bench had observed that the interest of the child both as a victim as well as witness needs to be protected.

"The proforma designed by the Civil Hospital, Palampur is bad in law for another reason also as it completely ignores Section 53A of the Indian Evidence Act as introduced by amendment Act No. 13 of 2013," further noted the Court.

Besides, the bench also noted that the proforma also violates the guidelines and protocols that have been used by the Union Health Ministry while dealing with survivors and sexual violence.

Referring to Guideline 18-B, the bench observed,

"From the perusal of the aforesaid guidelines, it is clear that “two-finger test, which as per the medical term, is called “per-vaginum examination” has been strictly prohibited under these guidelines and protocols. It is pertinent to mention here that these guidelines stand adopted by the Government of Himachal Pradesh and thus are applicable to the health professionals throughout the State of Himachal Pradesh."

The bench had also called the Health Secretary of Himachal Pradesh and appearing before the Court, the Health Secretary stated that the proforma in question was designed by some of the doctors at Civil Hospital, Palampur alone and such MLCs are not being issued anywhere in the State of Himachal Pradesh and have been withdrawn with immediate effect even from Civil Hospital, Palampur.

Taking note of this, the HC bench asked the State to pay Rs 5 lakh compensation to the victim and hold an inquiry against the erring doctors. The bench mentioned in the judgment,

"Since “two-finger test” is violative of right of rape survivors to privacy, physical and mental integrity and dignity, therefore, in the given background, the respondents are directed to pay a sum of Rs.5 lacs, as compensation, to the child victim, for the trauma, embarrassment, humiliation and harassment having been caused to her at the hands of the Doctors in the Civil Hospital Palampur, which shall, at the first instance, be paid by the State and thereafter recovered from the erring medical professional(s), after holding an inquiry."

"The inquiry shall be held against all those Doctors, who designed the proforma and thereafter responsibility be fixed and the mere fact that some of these Doctors have since retired will not come in the way of the respondent-State in fastening the financial liability on them. Further, inquiry be held against all those Doctors, who medically examined the child victim and issued the MLC in question and thereafter responsibility be fixed and here again, the mere fact that the Doctor(s) has/have retired shall not come in the way to fix both liability as well as responsibility," it further noted.

Issuing directions to all the doctors in the State not to undertake the "two-finger test", the bench ordered,

"In the meanwhile, all the health professionals of the State of Himachal Pradesh are directed to strictly desist from undertaking “two-finger test” know as “per-vaginum examination” on the rape survivors or else apart from other action(s) that may be taken against them, they shall be liable for being prosecuted and punished under the Contempt of Courts Act."

The court also observed that it is unfortunate that even the learned Special Judge and learned District Attorney have not been sensitive enough in conducting the case.

Two-finger test and legal precedents:

The 'two-finger test' used to be conducted on victims of sexual assault and rape to determine whether they are habituated to sexual intercourse. Back in 2022, 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.

Medical Dialogues had earlier reported that back then, the Apex Court had said that 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.

Banning this test, the Supreme Court bench had also mentioned at that time that any person who conducts the two-finger test or per vaginum examination (while examining a person alleged to have been subjected to a sexual assault) in contravention of the directions of this court shall be guilty of misconduct.

Further issuing directions to remove this test from the syllabus, the bench had mentioned, "Conduct workshops for health providers to communicate the appropriate procedure to be adopted while examining survivors of sexual assault and rape; and review the curriculum in medical schools with a view to ensuring that the two-finger test or per vaginum examination is not prescribed as one of the procedures to be adopted while examining survivors of sexual assault and rape."

Reiterating the fact that the Supreme Court has banned the Two-Finger Test, the Madras High Court last year stated that the medical practitioners who continue to conduct this banned test will be guilty of misconduct.

To view the Himachal Pradesh HC's order, click on the link below:

https://medicaldialogues.in/pdf_upload/himachal-hc-two-finger-test-230448.pdf

Also Read: Doctors Performing 'Two Finger Test' will be Guilty of Misconduct