Virginity Test Is Sexist, Can’t Be Performed On Female Accused In The Name Of Finding Truth: Delhi High Court

Update: 2023-02-07 12:05 GMT

Calling it a form of “inhuman treatment”, the Delhi High Court on Tuesday held that conducting virginity test on a female detainee or accused under investigation is unconstitutional and in violation of her right to dignity enshrined under Article 21 of the Constitution of India.

Justice Swarana Kanta Sharma held that virginity test is “sexist” and violates human right to dignity of a female accused if she is subjected to such a test while being in custody.

Observing that the test is neither modern nor scientific but is rather “archaic and irrational”, the court said that modern science and medical law disapproves the conduct of such tests on women.

“To hold that conducting virginity test on a woman who is victim of sexual assault and on a woman who may be an accused of an offence will be on different footing or that the earlier will be unconstitutional and the later constitutional, will be a perverse finding and against the intent of the Constitution of India and Article 21,” the court added.

Justice Sharma held that the virginity test, being violative of right to dignity of an individual, cannot be resorted to by the State and will be in teeth of the scheme of Constitution of India, including the right to life under Article 21.

“Conducting such test on the pretext of reaching truth regarding allegations against her will amount to infringement and violation of her right enshrined in Article 21,” the court said.

The court referred to Section 53 of Cr.P.C. which provides for medical examination of a person who has been arrested for committing an offence of such a nature that there are reasonable grounds for believing that an examination will afford evidence regarding the commission of an offence.

Perusing the provision, the court said that virginity test finds no mention in its explanation as a technique to be used in medical examination of an accused to ascertain the facts which may afford evidence.

It added that the Indian Parliament, while introducing the explanation to provision and listing several forms of medical examination, left the scope for more techniques to be included within its ambit.

“A reading of ‘explanation’ to Section 53 shows that the same mandates medical examination of an accused person by “use of modern and scientific techniques”. It would not be out of context to state here, that, by no stretch of examination, ‘virginity test’ can presumably fall under the said provision. Virginity test is neither modern nor scientific, rather archaic and irrational. Modern science and medical law disapproves the conduct of such tests on women…,” it said.

It also said that the “right to dignity” of a person as available under Article 21 is not suspended even when the person is accused of committing an offence or is arrested.

“Strangely, though the word “virginity” may not have a definite scientific and medical definition, it has become a mark of purity of a woman. The intrusive testing procedure, as been held in several judgments of the Hon’ble Apex Court, does not have a medical standing. Despite being inaccurate and their being definite studies that in some women hymen may not tear during vaginal intercourse, while in others they may tear even without vaginal sexual intercourse due to sports and other activities and some women may not even have one, such test has been conducted,” it said.

Furthermore, the court said that such a test “rests on gender bias and society’s view and obsession with the false concept of virginity being equated with purity of a woman”, adding that it also amounts to controlling women’s body, their sexual behavior and the view that “a woman with the hymen is pure and innocent.”

“It will be difficult for this Court to hold being guided by the Constitutional principles of fundamental rights that a person in custody of the authorities surrenders right to bodily integrity and submits to bodily intrusion for the prosecution to find evidence through its body. The feeling of being demeaned by such treatment in custody by bodily invasion through conducting a virginity test also brings forth the undesirable and abhorrable notion of differentiation on the basis of gender and stereotypes,” the court said.

The court made the observations while dealing with a plea moved by Sister Sephy, convicted in 1992 Sister Abhaya murder case, challenging the virginity test conducted on her by CBI as unconstitutional.

The court said that Sister Sephy’s contention that selective leaking of the report of virginity test by CBI and introducing false theory of hymenoplasty amounted to defamation cannot be examined by it. However, it added that she has other remedies available in law after conclusion of trial, to take recourse to.

Needless to say, the right to dignity in custody and actions considered defamatory of the investigating agency are rights independent of each other. The protection of reputation can be in context of a defamation case,” the court said.

Expressing shock in the matter, the court said virginity test was used to determine the truth of the accusation of murder against Sister Sephy and that the test in itself is extremely traumatic for a victim of sexual assault as well as on any other women in custody. It added that such test is bound to have devastating effect on the psychological as well as physical health of the person.

Regarding the prayer for taking action against CBI, the court said that in 2008 when the test was conducted upon Sister Sephy, there were no guidelines of the Supreme Court or otherwise to have declared such tests to be unconstitutional or in violation of fundamental right of a female even qua the victims of sexual assault and that such tests were being conducted in cases of victims of sexual assault all over the country.

“Therefore, at the relevant time, it was not barred in law or by any judgment to have got it conducted, howsoever despicable or deplorable the practice may have been,” the court said.

However, on the question regarding grant of compensation or as to whether Sister Sephy was subjected to custodial torture, the court said that NHRC will consider afresh the representation filed by her regarding custodial torture or compensation once the criminal trial against her concludes.

“The contention of petitioner that the delay in human right proceedings before National Human Rights Commission has resulted into denial of natural justice and has caused further psychological and sociological harm to the petitioner is without merit as under Regulation 9 of the National Human Rights Commission (Procedure) Regulations, 1994, the Commission was bound by its own rules and could not have given the relief sought for due to bar of the same, however the doors are still not closed as at the end of trial, the petitioner may again approach National Human Rights Commission,” it said.

While disposing of the matter, the court issued the following directions:

- The necessary information regarding unconstitutionality of virginity test as above be circulated to all investigating agencies/stakeholders through Secretary, Union Ministry of Home Affairs, Secretary, Union Ministry of Health and Family Welfare and Secretary, Department of Health and Family Welfare, Govt. of NCT of Delhi.

- The Delhi Judicial Academy is directed to include in its curriculum and in the workshops conducted for investigating officers, prosecutors and other stakeholders, the information regarding this issue.

- Similarly, the Delhi Police Academy for Training shall also include the necessary information regarding this issue in its training curriculum.

- The Commissioner of Police, Delhi is also directed to ensure that the investigating officers are informed and sensitized in this regard.

The court clarified that it was examining the question as to whether the virginity test conducted on Sister Sephy was in violation of her fundamental right to live with dignity and not regarding its outcome and its bearing or admissibility before the court the trial of criminal case is pending.

“It is also clarified that the issue before this Court was only regarding the infringement of fundamental right of the petitioner and the dismissal of representation of the petitioner before National Human Rights Commission having its Headquarters at Delhi and regarding the plea for taking action against officers of Central Bureau of Investigation who were instrumental in getting the test conducted during the course of investigation having its Headquarters in Delhi, and the decision rendered by this Court will have no bearing on the criminal case pending before the concerned courts,” it said.

The court expressed its appreciation for assistance rendered by lawyers who appeared in the case, including Advocates Romy Chacko, Ripu Daman Bhardwaj, Kirtiman Singh and S. Nanda Kumar.

A CBI Court in 2020 had found Sister Sephy guilty for the murder of Sister Abhaya and sentenced her to life imprisonment. The Court had relied on virginity test findings to support its finding that Sister Abhaya was murdered to cover-up the clandestine relationship between Sephy and another accused Father Kottoor.

The sentence now remains suspended by the Kerala High Court in appeal.

Sister Abhaya, a 20 year old novice, was found dead inside the well of St.Pious Xth Convent at Kottayam on March 27, 1992. The local police and the Crime Branch of the Kerala Police had initially closed the matter as a case of suicide. However, owing to a massive public outcry, the case was later handed over to the CBI. 

Advocates Romy Chacko, Varun Mudgal and Sudesh Kumar appeared for petitioner.

Ripu Daman Bhardwaj, SPP for CBI; Kirtiman Singh, CGSC; Advocates S. Nanda Kumar, Deepika Nanda Kumar and Anand Murthi Rao appeared for NHRC.

Title: SR. SEPHY v. CBI & ORS.

Citation: 2023 LiveLaw (Del) 127

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