Indian Supreme Court bans use of ‘patriarchal’ two-finger test in rape cases

The bench directed the federal government as well as the state governments to ensure that the test is not practiced

India’s Supreme Court has prohibited the use of the “two-finger test” in rape cases and asked the federal government and the states to ensure that the controversial practice is stopped.

On Monday a two-judge bench comprising Justice DY Chandrachud and Hima Kohli lashed out at the continued use of the practice despite repeated interventions by the apex court.

The bench said: “This court has time and again deprecated the use of two finger test in cases alleging rape and sexual assault.

“The so-called test has no scientific basis. It instead re-victimises and re-traumatises women. The two-finger test must not be conducted... The test is based on an incorrect assumption that a sexually active woman cannot be raped. Nothing can be further from the truth,” reported LiveLaw.

The bench’s judgment came while overturning a ruling by the Telangana high court acquitting a rape and murder case.

In restoring the conviction, the top court upheld a trial court’s decision that held the accused guilty.

“The probative value of a woman’s testimony does not depend on her sexual history. It is patriarchal and sexist to suggest that a woman cannot be believed when she states that she was raped merely because she is sexually active,” the bench added.

The bench directed the federal government as well as the state governments to ensure that the test is not practiced.

It also directed that all curriculum related to the test be removed from government and private hospitals.

Human Rights Watch has described the test as “invasive, humiliating, and inhumane”.

It involves inserting two fingers into the vagina for doctors to then assess its laxity before making a conclusion on whether the woman has had sex.

Following the 2012 gangrape and murder of a student in Delhi that had sparked widespread outrage and protests, the federal government had amended the Criminal Laws (Amendement) Act, 2013 and made the two-finger test illegal.

In 2013, the Supreme Court had held that the practice of using the test was unconstitutional.

However, the test continued to be used in several states.

The bench on Monday also directed that workshops should be conducted to healthcare providers to communicate appropriate procedures while examining cases of sexual assault.

While the apex court’s judgment has been hailed, some have also expressed dismay at the continued use of the practice.