Regressive, Sexist, and Unconstitutional


On 31 October 2022, a two choose bench of the Indian Supreme Court docket delivered a vital order, reiterating its ban on the so known as “two finger check”. The continued utilization of the check, the Court docket said in State of Jharkhand v. Shailendra Kumar Rai, is skilled misconduct. To implement the ban of this apply in opposition to survivors of sexual violence the bench issued a slew of instructions.  On this submit, I focus on the impression of this order on the constitutional rights of survivors of sexual violence. Whereas the Court docket’s judgment is a progressive one, it won’t have the specified impact, specifically the entire ban on the conduct of the ‘two finger check’.

Unconstitutionality of the ‘two finger check’

The ‘two finger test’ is a gynaecological examination whereby the medical skilled inserts two fingers into the survivor’s vaginal canal to check whether or not there’s a laxity of vaginal muscle tissues. The Committee on Amendments to Legal Regulation headed by Justice Verma in its report noticed that this check is carried out to be able to decide the distensibility of the hymen and is used as a foundation for making observations or drawing conclusions concerning the previous sexual conduct of the survivor. The report highlighted that other than being scientifically inaccurate the observations or conclusions drawn from the check are additionally in contravention of the legislation. Including part 53A to the Indian Proof Act the legislature determined in 2013 that proof pertaining to earlier sexual expertise of the survivor is not going to be handled as proof in sure circumstances

In 2013, the Supreme Court docket of India held in Lillu v. State of Haryana that each the appliance and interpretation of the ‘two finger check’ violates the proper to privateness, bodily and psychological integrity and the dignity of the survivor. The Court docket additionally noticed that survivors of sexual violence shouldn’t be subjected to authorized procedures that retraumatise them and that medical procedures should respect their proper to consent. On this level, the bench positioned reliance on the Worldwide Covenant on Financial, Social and Cultural Rights and the UN Declaration of Primary Rules of Justice for Victims of Crime and Abuse of Energy. Likewise, subsequent choices of the Supreme Court and various Excessive Courts in India reiterated the unconstitutionality of the check.

A step in the proper course

Nonetheless, even within the aftermath of the 2013 judgment survivors of sexual violence nonetheless needed to bear the check. Authorized proceedings pertaining to sexual violence and in matrimonial disputes saved counting on the check since there was a lack of legislative effort to move efficient legal guidelines that penalised the conduct of the check. There was additionally failure on the a part of sure medical faculties to replace their course curriculum and to exclude textbooks that advocate for the adoption of the check whereas inspecting survivors of sexual violence. The Ministry of Well being and Household Welfare issued guidelines on ‘medico-legal take care of survivor or victims of sexual violence’ in 2014 and proscribed the check from being administered on victims/survivors of sexual violence. However since pointers are not legally binding and there was negligible effort by many state governments to implement it, the bottom actuality remained unchanged. Some courts additionally continued to put reliance on the check whereas adjudicating on circumstances involving sexual violence.

As Vrinda Grover, a senior human rights lawyer, has pointed out, survivors are nonetheless mechanically subjected to this invasive examination. She provides that in sure situations the place the survivors have refused to bear the check, the medico authorized certificates document such a refusal – which is then used in opposition to the survivor within the trial. As Neetika Vishwanathan has noticed in her analysis on rape trials in Lucknow, the format of medico-legal certificates have modified following the passage of the Legal Regulation (Modification) Act, 2013, however the invasive check was nonetheless administered.

This continued use of the check was the explanation for the Supreme Court docket of India to reiterate its stance on the check, this time with way more vigour nevertheless. Whereas setting apart an acquittal awarded to an individual accused of rape and homicide by the Excessive Court docket the Supreme Court docket recorded that the ‘two-finger check’ had been carried out on the survivor. Deprecating the check, the Court docket condemned it as one which lacks any scientific foundation and is an affront to the dignity of a lady. In a really pertinent remark, the courtroom states that the check is predicated on the wrong and disturbing presumption {that a} girl who’s sexually energetic can’t be raped and labels it ‘regressive and sexist’. The courtroom then proceeds to concern instructions with an intention to stop the longer term use of this check. First, the courtroom ordered the  dissemination of details about pointers issued by the Ministry of Well being and Household Welfare to hospitals throughout the nation, and that  medical professionals must be sensitised. Second, the courtroom directed that the curriculum in medical faculties needs to be reviewed or revised in a way that it doesn’t authorise the ‘two-finger check’ to be carried out on survivors of sexual violence.

The bench then takes a major step ahead by holding that anybody conducting the ‘two-finger check’ on survivors of sexual violence shall be ‘responsible of misconduct’. This distinguishes the judgment from these beforehand delivered by Indian courts because it deters medical professionals from conducting the invasive check as a consequence of concern of opposed penalties. Nonetheless, it’s unclear whether or not the time period ‘responsible of misconduct’ used on this judgment would essentially imply that the medical skilled who performs the check shall be charged with skilled misconduct.

Apprehensions and the tough actuality

But, although the order by the Supreme Court docket is a progressive one, it additionally has shortcomings. Whereas the courtroom cracks down on medical professionals who conduct the ‘two-finger check’, it fails to contemplate the function of the courts who proceed to put reliance on the check in sure cases involving sexual violence. Some courts nonetheless depend on sure textbooks on medical jurisprudence which hyperlink  the bodily attributes of a lady’s genitalia, such because the elasticity of her vagina and the situation of her hymen, to her sexual historical past. For instance, the twenty seventh version of Modi’s textbook on medical jurisprudence nonetheless accommodates a phase on the ‘attainable indicators of virginity’ in a lady’s physique (although it has retraced controversial remarks advocating the relevance of the ‘two-finger check’ in circumstances involving sexual violence contained in earlier editions of the e book as a consequence of criticism). Courts extensively relied upon earlier editions of this textbook whereas handing down verdicts in prison trials involving sexual violence as famous by Mrinal Satish in his e book ‘Discretion, Discrimination and the Rule of Law’. Aside from revising medical textbooks and curriculum it’s thus additionally essential that courts rethink the reliance positioned on these medical jurisprudence textbooks which reinforce dangerous stereotypes.

The Supreme Court docket additionally didn’t concern instructions to stop the subordinate judiciary from asking girls to bear the check in authorized trials. And eventually, the order additionally restricts itself to penalising the practitioner provided that the invasive check is run on survivors of sexual violence, disregarding the truth that the check can be practiced and materially relied upon in sure different authorized proceedings arising out of matrimonial disputes.

Conclusion

Regardless of these shortcomings the judgment is progressive and undeniably consequential in proscribing the conduct of the ‘two-finger check’. It additionally serves as a reminder that the advantage of constitutional freedoms and progressive realisation of rights are reaped solely when supported by administrative or judicial efforts to allow efficient implementation.



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