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

While mincing just no words in calling it a form of “inhuman treatment”, the Delhi High Court in a robust, remarkable, rational and recent judgment titled Sr. Sephy v. CBI & Ors in W.P.(Crl.) 1729/2009 and cited in 2023 LiveLaw (Del) 127 that was reserved on December 14, 2022 and then finally pronounced on February 7, 2023 has held most explicitly that conducting a virginity test on a female detainee or on an accused under investigation is unconstitutional and in violation of her right to dignity enshrined under Article 21 of the Constitution of India. While also taking a very pragmatic, progressive and practical stand, the Hon’ble Ms 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. It was also 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.” Very rightly so!

At the very outset, this notable judgment authored by the Single Judge Bench comprising of Hon’ble Ms Justice Swarana Kanta Sharma sets the ball in motion by first and foremost putting forth in para 1 that, “This Court vide this judgment examines the following grave question of law:

“Whether virginity test conducted on a female in police custody during investigation is in violation of her fundamental right under Article 21 of the Constitution of India”.”

To put things in perspective, the Bench envisages in para 3 that, “An inmate of a Hostel in Kottayam, Kerala was found dead in the well on 27.03.1992 and the local police had registered the crime No. 187/92 as ‘unnatural death’ on the basis of the statement given by ‘X’. Though the Central Bureau of Investigation had entertained reasonable doubt as to whether death of deceased was suicide or homicide as evident from the final report submitted before the Court on 29.11.1996, the Kochi unit of the very same investigating agency took a different stand in concluding that the death was homicide. The investigating agency arrayed the petitioner as the third accused with two other co-accused persons.”

As things stood, the Bench states in para 4 that, “The petitioner was arrested on 19.11.2008 and was produced before the Court of Chief Judicial Magistrate, Ernakulam which remanded the petitioner to custody of Central Bureau of Investigation for further investigation.”

As it turned out, the Bench points out in para 5 that, “On 25.11.2008 by afternoon, the petitioner was taken to Alapuzha Medical College without disclosing the destination or the purpose where two lady doctors from the Forensic Science Department and one Gynecologist of the Govt. Medical College were present. The petitioner was taken to a room and was asked to sign a document and upon her enquiring about the matter, she was told that it was the consent letter for a test. It is the case of petitioner that her consent was obtained forcefully by officers of Central Bureau of Investigation and the doctors therein under duress and coercion by subjecting her to severe mental torture. Thereafter petitioner was subjected to ‘Virginity test’ and ‘swab test’ and about one hour thereafter she was taken back to the guest house.”

Be it noted, the Bench while citing the relevant and recent case law observes in para 56 that, “Recently, the Hon’ble Apex Court in State of Jharkhand v. Shailendra Kumar Rai @ Pandav Rai 2022 SCC OnLine SC 1494, relying upon the decision in Lillu v. State of Haryana (supra) and the ‘Guidelines & Protocols: Medico-legal care for survivors/victims of sexual violence’ issued by Ministry of Health and Family Welfare, Government of India in year 2014, observed that any person who conducts the “two-finger test” shall be in contravention of directions of the Apex Court and guilty of misconduct. The observations are as under:

• “…64. While examining the victim, the Medical Board conducted what is known as the “two-finger test” to determine whether she was habituated to sexual intercourse. This Court has time and again deprecated the use of this regressive and invasive test in cases alleging rape and sexual assault. This so-called test has no scientific basis and neither proves nor disproves allegations of rape. It instead re-victimizes and retraumatizes women who may have been sexually assaulted, and is an affront to their dignity. The “twofinger test” or pre-vaginum test must not be conducted….
• 66. Whether a woman is “habituated to sexual intercourse” or “habitual to sexual intercourse” is irrelevant for the purposes of determining whether the ingredients of Section 375 of the IPC are present in a particular case. The so called test is based on the incorrect assumption that a sexually active woman cannot be raped. Nothing could be further from the truth – a woman’s sexual history is wholly immaterial while adjudicating whether the accused raped her. Further, the probative value of a woman’s testimony does not depend upon her sexual history. It is patriarchal and sexist to suggest that a woman cannot be believed when she states that she was raped, merely for the reason that she is sexually active.
•  67. The legislature explicitly recognized this fact when it enacted the Criminal Law (Amendment) Act 2013 which inter alia amended the Evidence Act to insert Section 53A. In terms of Section 53A of the Evidence Act, evidence of a victim’s character or of her previous sexual experience with any person shall not be relevant to the issue of consent or the quality of consent, in prosecutions of sexual offences.
• 68. The Ministry of Health and Family Welfare issued guidelines for health providers in cases of sexual violence. These guidelines proscribe the application of the “two-finger test”:

  “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. Per vaginum examination can be done only in adult women when medically indicated.”

  The status of hymen is irrelevant because the hymen can be torn due to several reasons such as cycling, riding or masturbation among other things. An intact hymen does not rule out sexual violence, and a torn hymen does not prove previous sexual intercourse. Hymen should therefore be treated like any other part of the genitals while documenting examination findings in cases of sexual violence. Only those that are relevant to the episode of assault (findings such as fresh tears, bleeding, edema etc.) are to be documented.”

• 69. Although the “two-finger test” in this case was conducted over a decade ago, it is a regrettable fact that it continues to be conducted even today….
• 72. Any person who conducts the “two-finger test” or per vaginum examination (while examining a person alleged to have been subjected to a sexual assault) in contravention of the directions of this Court shall be guilty of misconduct…” (Emphasis supplied).”

  Do note, the Bench notes in para 59 that, “On similar lines as aforesaid, the “Report of the Committee on Amendments to Criminal Law, 2013”, headed by Justice (Retd.) J.S. Verma, had made the following observations and suggestions qua the conduct of virginity tests:

• “9. The issue of whether sexual assault occurred is a legal issue and not a medical diagnosis. Consequently, doctors should not, on the basis of the medical examination conclude whether rape had occurred or not. Only findings in relation to medical findings should be recorded in the medical report.
• 10. It is crucial to underscore that the size of the vaginal introitus has no bearing on a case of sexual assault, and therefore a test to ascertain the laxity of the vaginal muscles which is commonly referred to as the two-finger test must not be conducted. On the basis of this test observations/ conclusions such as ‘habituated to sexual intercourse’ should not be made and this is forbidden by law.
• 11. Routinely, there is a lot of attention given to the status of hymen. The “finger test” is also conducted to note the distensibility of the hymen. However it is largely irrelevant because the hymen can be torn due to several reasons. An intact hymen does not rule out sexual assault, and a torn hymen does not prove previous sexual intercourse. Hymen should therefore be treated like any other part of the genitals while documenting examination findings in cases of sexual assault. Only those that are relevant to the episode of assault (findings such as fresh tears, bleeding, oedema etc.) are to be documented…” (Emphasis supplied).”

International Perspective on Virginity Test

It is worth noting that the Bench notes in para 60 that, “The ‘Convention on the Elimination of All Forms of Discrimination Against Women, 1979’, ratified by India, provides as under:

“Article 5 –

States Parties shall take all appropriate measures:

(a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women…”.”

Needless to say, the Bench rightly states in para 74 that, “Since the virginity test was conducted in this case during the investigation of a murder case, and this Court is not deciding the question as to whether it was essential or not but is only examining the constitutional validity of the same, it will be essential to note that even as an accused, the fundamental rights available to an accused/prisoner/detainee are not suspended so far as the question of their privacy and dignity is concerned and this has been elaborately discussed in the case of D.K. Basu v. State of West Bengal (supra) and other precedents cited hereinabove.”

It would be instructive to note that the Bench observes in para 89 that, “While our country has made positive and definite strides by way of several judgments of Hon’ble Supreme Court in this regard as far as victims of sexual assault are concerned, this Court holds that on the same analogy as laid down in the judgment of Lillu v. State of Haryana (supra) and State of Jharkhand v. Shailendra Kumar Rai @ Pandav Rai (supra), conducting such tests on a female accused in custody will also amount to violation of her right to dignity and, therefore, in violation of Article 21 of the Constitution of India. Needless to say, rights of an accused in custody are also to be safeguarded even if some rights have to yield to the safety of the State.”

Briefly stated, the Bench rightly holds in para 96 that, “It is declared that the virginity test conducted on a female detainee, accused under investigation, or in custody, whether judicial or police, is unconstitutional and in violation of Article 21 of the Constitution which includes right to dignity.”

To conclude, the Delhi High Court made it amply clear that the virginity test is sexist. The Bench also made it clear that it therefore can’t be performed on female accused in the name of finding truth. So all the courts and all men in uniform must definitely abide by what the Delhi High Court has laid down in this leading case! No denying it!

By Sanjeev Sirohi