Jharkhand HC orders complete ban on 'two-finger test' in all hospitals, medical institutes

Ranchi: Observing that the 'two-finger test' violates the right of rape survivors to privacy, physical as well as mental integrity and dignity, the Jharkhand High Court recently directed the State Government to ensure a complete prohibition of the said test in all government and private hospitals across the State.

"The Department of Home, Jail & Disaster Management, Government of Jharkhand is directed to issue circular prohibiting “two finger test” (if not yet issued) in all government and private hospitals/medical institutions with a further direction that violation of the said circular by any person including doctor and para medical staff will be treated as professional misconduct and the erring person will be subjected to departmental proceeding, the HC bench comprising Chief Justice M.S. Sonak and Justice Rajesh Shankar ordered.

The High Court issued these directions while hearing a suo motu public interest litigation concerning the protection, welfare, rehabilitation, and support mechanisms available to rape survivors in the State. The court had initiated the suo motu PIL for assessing whether the existing institutional mechanisms were sufficient for protecting rape survivors, for facilitating access to justice, and ensure their long-term rehabilitation.

During the case proceedings, the court took note of the response from police authorities, medical institutions, child welfare bodies, and government departments dealing with the victims of sexual offences.

Apart from reiterating the ban on the controversial two-finger test, the HC bench also issued a series of directions addressing issues such as registration of Zero FIRs, victim support systems, providing rehabilitation, and assistance to children of rape survivors.

High Court's observations on Two-Finger Test: 

The writ petition was originally filed in the form of Public Interest Litigation seeking several reliefs. One of the reliefs sought was a direction upon the concerned respondent authorities not to conduct ‘two-finger test’ during medical examination of the rape victims.

While considering the matter, the HC bench noted that the Supreme Court in the case of Lillu @ Rajesh & Another v. State of Haryana, held that the two-finger test and its interpretation violates the right of rape survivors to privacy, physical as well as mental integrity and dignity. This test, even if the report is affirmative, cannot ipso facto, give rise to a presumption of consent.

Further, in the case of State of Jharkhand v. Shailendra Kumar Rai @ Pandav Rai, the Apex Court held that a woman's sexual history is wholly immaterial while adjudicating whether the accused raped her. Further, the Court had held that section 53-A of the Evidence Act also provides that the evidence of a victim's character or of her previous sexual experience with any person shall not be relevant to the issue of consent or the quality of consent in prosecutions of sexual offences.

The HC bench also noted that the Ministry of Health and Family Welfare, Government of India issued guidelines and protocols on 19.03.2014 named as “Medico-legal Care for Survivors/Victims of Sexual Violence” to ensure a sensitive, standardized and right based approach to medical examination and treatment, which mandates that “per vaginum examination” commonly referred to by lay persons as “two-finger test”, must not be conducted for establishing rape/sexual violence as the same is strictly prohibited and the size of the vaginal introitus has no bearing on a case of sexual violence.

It was further observed that the Apex Court had directed the Union Government as well as the State Governments to ensure that the guidelines formulated by the Ministry of Health and Family Welfare, Government of India must be circulated to all concerned including private hospitals as well as to conduct workshops for health providers to make them aware of the appropriate procedure to be adopted while examining survivors of sexual assault and rape.

Another direction was to 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 the survivors of sexual assault and rape.

Lastly, the Apex Court had directed that any person who conducts “two-finger test” or “per vaginum examination” in contravention of the directions of the Court shall be guilty of misconduct.

During the case proceedings, the Amicus Curiae suggested the HC to issue directions to the Department of Health, Medical Education and Family Welfare, Government of Jharkhand to completely prohibit the use of "twofinger test" in all hospitals, medical colleges and other health care providers with clear guidelines regarding Trauma-informed Care (TIC) approach towards the sexual assault survivors including their medical examination in a dignified way.

It was suggested by the Amicus Curiae that the State Government must issue binding circular/SOP prohibiting the said test in all government and private hospitals, conducting mandatory training and sensitisation of doctors, forensic experts, and police officials. Any violation of these directives should be treated as professional misconduct, attracting action under the relevant medical and disciplinary statutes, thereby safeguarding the victim’s rights to dignity, privacy and bodily integrity.

Accordingly, the HC bench ordered, "In view of the aforesaid judicial pronouncement and legal provisions, it is no more res integra that "two-finger test" conducted during medical examination of sexual assault victims has been strictly prohibited and medical examination of such victims in the hospitals/medical institutions must be conducted in a dignified manner in accordance with law."

"We accept the suggestions of the learned Amicus Curiae. Accordingly, the State of Jharkhand is directed to issue circular prohibiting the “two finger test” in all government and private hospitals/medical institutions with a further direction that any violation of the said Circular will be treated as professional misconduct and the erring person will be liable to be strictly deal with in accordance with law," the Court further noted.

Supreme Court's Directions: