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

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

Nupur Thapliyal

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