Drop ‘patriarchal, sexist’ 2-finger test from medical syllabus: Supreme Court

The Supreme Court (SC) has once again called for a ban on the two-finger test in rape cases nearly a decade after it first did so. It has said those who conduct it would be held guilty of misconduct.

A Bench made up of Justice DY Chandrachud and Justice Hima Kohli made the observations in an SC order overturning the acquittal of a rape accused in the Telangana High Court October 31, 2022.

Chandrachud, who will soon take over as the Chief Justice of India November 9, called the practice ‘patriarchal’ and ‘sexist’ . He also ordered the two-finger test to be removed from the syllabus of medical education. 

Chandrachud observed the test not only re-traumatised and re-victimised women, but was actually “based on an incorrect assumption that a sexually active woman cannot be raped. Nothing can be further from the truth.”

“Evidence of a victim’s sexual history (is) not material to case. It is regrettable that it continues to be conducted even today,” Chandrachud said.

The bench directed the Union health ministry to ensure the two-finger test was not conducted on rape survivors. It also asked the central and state governments to relay the information to all government and private hospitals.

A notorious practice 

The two-finger test is an invasive, unscientific and regressive practice where two fingers are inserted in the vagina to assess laxity of vaginal muscles and examine the hymen.

In rape cases, this test is used to gauge whether a person is sexually active or a virgin. “This test has no scientific value; the absence of the hymen and laxity of the vaginal orifice may occur for reasons unrelated to sex,” a BMJ article notes.

The practice is also known as per-vaginal examination in medical jargon and is not only conducted on rape survivors but also otherwise.

Dr Nikhil Datar, a Mumbai-based gynaecologist, said if a doctor was doing an examination to assess the uterus, they had to conduct a per-vaginal examination.

“The problem lies in the interpretation of the test,” he said, adding that “drawing conclusions about whether the woman is habituated to intercourse on the basis of this examination and indirectly casting impression about whether there was an assault or not is baseless and wrong.” 

Chandrachud’s observations is not the first time the two finger test has received legal attention. A 2013 SC order had noted in a similar tone as the recent judgement:

Undoubtedly, the two-finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity. Thus, this test, even if the report is affirmative, cannot ipso facto, be given rise to presumption of consent.

This came on the heels of the December 2012 Nirbhaya gangrape case, after which the Union health ministry updated the proforma for medical examination of rape victims to remove the  two-finger test.

A rape test kit, detailling tools required to collect evidence of sexual assault According to the World Health Organization (WHO) guidelines, was prepared but failed to make any impact. In the absence of these kits, the two-finger test continued as is, Down To Earth had earlier reported.

The continued abuse of this examination has the potential to impact legal outcomes. The BMJ article argues that “defence lawyers use an ‘affirmative’ two-finger test to question a woman’s character and to refute allegations that sex was non-consensual. Such patriarchal assumptions have contributed to victims losing cases.”

The practice was termed unconstitutional even then. But not much has changed. There has been a complete disconnect with the observations made by the court and the reality.

Medical curriculum has to keep pace with changes in the society and law. The text books also need to be amended suitably. Many textbook of forensic medicine still continue to carry old, outdated information and the two-finger test is a glaring example.

“Although the standards of the practice has changed, if it does not percolate into syllabus, how will the new doctors learn right things?” Datar said.

He welcomed the order of the apex court: “The latest order creates the connection which was missing till now. Now medical text books will have to  keep pace with legal changes and that will benefit young doctors and society at large.”