Explain whether two finger test on rape victims banned? CIC
The CIC Prof M Sridhar Acharyulu summoned PIO Directorate of Health Services to come with relevant files to explain whether pv test (two finger test) on rape victims was prohibited or not. The maligned two-finger test that was used by doctors to opine whether the girl is habituated to sexual intercourse or not, was opposed and the manual recognizes that it is no way scientific and shall not be performed. In response an RTI appeal by Yogesh Kumar the CIC directed on 28th Jan 2015 to explain a) whether they have taken any decision or not in regard to banning of two finger test on victims of sexual assault, b) if not what are the reasons for not taking any decision, c) what actions are available if their guidelines are not followed, and d) when guidelines are specifically dissuading doctors from conducting this notorious test, why the medical text books are not revised accordingly, etc.
Appellant did not receive proper information even in first appeal. Then Medical Superintendent stated that “a draft advisory was prepared by the members of the committee constituted by competent authority. The advisory has been sent to the office of Secretary (H&FW) for perusal and approval with the main file”.
The Commission noticed that there is no specific prohibition and that was not stated in response to the appellant’s RTI.
Dr CD Jassal, nodal officer of Sexual Assaults Cases, on 14.1.2011said that such test was absolutely not necessary since forensic evidences can be collected without doing finger test. Forensic evidences are collected by using a sexual assault evidence collection kit or sexual assault forensic evidence (SAFE Kit) by female medical personnel. Maharashtra Government has done away with finger test on rape victims by issuing a Government Resolution GR during May 2013. The Resolution says such test is non-scientific most of the time, often resulting in hurdles in investigations and miscarriage of justice. This GR was issued based on a report by eight member panel appointed by Maharastra Government. The GR explained that the procedure of finger test is degrading and crude and medically and scientifically irrelevant. Information about past sexual conduct has been considered irrelevant and the doctor need not verify if the victim habitually has sexual intercourse. Some of the medical books still continue to propagate the test and many time students are subliminally picking up the message. The text books mention the test but do not mention its disadvantages.
Planning Commission's Working Group headed by Secretary, Women and Child Development Ministry, in its report in January, 2012 recommended abolition of this test in order to protect victims of sexual abuse from further mental trauma. Social activists have for long been demanding a ban on the "archaic and outdated" practice. They termed the test "unscientific and degrading".
Commission referred to judgment of Supreme Court in Lillu @ Rajesh and Anr. V. State of Haryana [(2013)14SCC643] holding that the two-finger test on a rape victim violates her right to privacy”. Referring to the International Covenant on Economic, Social, and Cultural Rights 1966 and the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985, the apex court said, rape survivors are entitled to legal recourse that does not re-traumatize them or violate their physical or mental integrity and dignity. Former CJI Justice Verma was the first one to highlight the need to standardize medical evidence collection during such victim's treatment process. On initiation of Secretary Keshav Desiraju, Department of Health Research along with Indian Council of Medical Research (ICMR) with the help of experts formulated a set of national guidelines for dealing with criminal assault cases, to put an end to the "horrendous" medical process.
The Commission referred to several provisions of the Criminal Law which determine the rights of victim in rape case. The expert’s team has developed a very useful set of Guidelines & Protocols, Medico-legal care for survivors/victims of sexual violence in 2014 which advises the doctors to be sensitive to the survivor besides prescribing specific “NO” to PV test, saying: Per-Vaginum examination commonly referred to by lay persons as 'two-finger test', must not be conducted for establishing rape/sexual violence and the size of the vaginal introitus has no bearing on a case of sexual violence. The Commission also observed that such an important policy should have been taken and disclosed under Section 4 of RTI Act voluntarily.