The division bench of Gujarat High Court presided by Justice J.B. Pardiwala and Justice Bhargav D. Karia in the case of State of Gujarat Vs. Rameshchandra Ramabhai Panchal stated that the two finger test conducted on the victims of rape, violates the right of the victim to privacy, physical and mental integrity and dignity and is unconstitutional in nature.
In the present case, the accused was charged u/s 363,366 and 376 of Indian Penal Code. The accused was found guilty u/s 363 and 366 of the IPC and was punished accordingly but was acquitted u/s 376 i.e rape. The trial court here has made a grave error in recording the age of the victim as it was considered by them that she is a major whereas at the time of the commissioning of the offence she was under the age of 16 years i.e a minor. Therefore, this appeal was filed before the Gujarat High Court.
During the course of proceedings in the trial court, it was found from the medical reports of the victim that two fingered test was conducted. The two-finger test also known as the PV (Per Vaginal) refers to an intrusive physical examination of a woman’s vagina to figure out the laxity of vaginal muscles and whether the hymen is distensible or not. Although, section 155 of the Indian Evidence Act, does not allow a rape victim’s credibility to be compromised on the ground that she is “of generally immoral character” the two-finger test form a medical opinion regarding consent that allows the past sexual history of the victim to cause prejudice to her testimony.
The Gujarat High Court stated that, “The two-finger test is unconstitutional. It violates the right of the victim to privacy, physical and mental integrity and dignity. The test itself is one of the most unscientific methods of examination used in the context of sexual assault and has no forensic value. Whether a survivor is habituated to sexual intercourse prior to the assault has absolutely no bearing on whether she consented when the rape occurred. Thus, this test, even if the report is affirmative, cannot ipso facto, give rise to presumption of consent.” Also, in the view of the International Covenant on Economic, Social, and Cultural Rights 1966 and the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985, the victim of sexual assault are entitled to legal recourse that does not traumatize them or violate their physical or mental integrity and dignity. They are also entitled to medical procedures conducted in a manner that respects their right to consent. Medical procedures should not be carried out in a manner that constitutes cruel, inhuman, or degrading treatment and health should be of paramount consideration while dealing with gender based violence.” Also, “We take notice of the fact that the Maharashtra Government has done away with finger test on rape victims by issuing a Government Resolution in 2013. The Resolution says that such test is non-scientific most of the time, often resulting in hurdles in the investigations and miscarriage of justice.” Therefore, the Gujarat High Court has declared the two-finger test to be unconstitutional in nature.
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Link to judgment: State of Gujarat v. Rameshchandra Panchal