Court Penalises Hospital for Performing the Two-Finger Test

Trigger Warning: The following content contains information on physical and sexual violence which some readers may find disturbing. 

Recently, a government hospital in Palampur faced the wrath of the Himachal Pradesh High Court for conducting the ‘Two-Finger’ test on a child survivor of sexual abuse and sharing a Medico Legal Certificate that was “demeaning, self-incriminating and self-inculpatory” for the child survivor.  Recording that those guilty should not be allowed to go scot-free, the High Court ordered a compensation of Rs 5 lakhs to be paid to the survivor.

In this Weekly, let us understand what protocol was the Palampur hospital supposed to follow and why they were penalised.  

What is a Medico- Legal Examination?

According to section 357 C of the Code of Criminal Procedure (CrPC),  survivors of sexual assault have the right to receive free and quality treatment from any private or public hospital. While there is no legal requirement for the survivor to undergo a medical examination, a report of the physical condition of the survivor often helps with the police investigation by collecting forensic information like the DNA swabs, details of injuries etc. The survivor or the guardian, in case of a minor, also has the right to refuse medical examination. This does not negatively impact their right to receive medical treatment. The Criminal Law Amendment Act, 2013 and section 27 of the Protection of Children from Sexual Offences Act ( POCSO) Act, 2012, also lay down specific rules to ensure that medical examination does not cause any discomfort or indignity to the survivor. On certain occasions, even the Court can order for a medical examination to be conducted. 

What is the procedure to be followed during a medical examination? 

The first step during any medical examination in case of sexual abuse is to provide the necessary medical treatment. After this,  forensic information can be collected. Under the law, only a female doctor can conduct the medical examination. The survivor can choose to stop or skip any step during the medical examination at any time. 

The dignity of the survivor should not be violated at any point. Accordingly, the Ministry of Health and Family Welfare in their 2014 Guidelines and Protocols on Medico-Legal Care For Survivors/Victims of Sexual Violence also shared the detailed protocols that should be followed while conducting a medical examination. Our Medico-Legal Guide for Survivors of Sexual Assault enlists details about the rights of the survivor of sexual assault and duties of the medical practitioners In 2022, the Supreme Court of India explicitly banned the ‘two- finger test’ as a part of the medical examination. 

Why was the two-finger test banned? 

To conduct a two-finger test, a doctor inserts two fingers into the survivor’s vagina to check the laxity of the hymen. This was traditionally practised as a test of virginity. However, there is no scientific validity to this test, especially in the context of rape. The 2018 World Health Organisation handbook highlights that this information has no bearing on the allegation of rape. 

In India, this practice was prohibited under section 53 A of the Indian Evidence Act , 1872, added under the Criminal Law Amendment Act 2013. It states that a person’s previous sexual history has no relevance to their testimony in cases of rape. The 2014 Guidelines also explicitly ban the two finger test. However,  these Guidelines are not legally binding. 

In 2013, in the Lillu v. State of Haryana case, the Supreme Court observed that the two-finger test cannot conclusively affirm that the survivor gave consent,  to rule out rape. It violates the survivor’s privacy, physical and mental integrity and dignity. Finally, in 2022, in the case of  State of Jharkhand v. Shailendra Kumar , the Supreme Court imposed a legal ban on the two finger test by reiterating that anyone who conducts the test would be guilty of misconduct. 

What should a survivor keep in mind during the medical examination? 

All public and private hospitals must provide medical care to survivors of sexual assault without any delay. They do not need to wait for any police requisition or court order. The hospital staff should record the survivor’s informed consent before proceeding with any medical procedure. The survivor has the option to refuse the medical examination and to not report the incident to the police. The hospital, on the other hand, is under a legal obligation to report it according to  section 357 C of CrPC. In that case, the hospital must independently register a “medico-legal case” and care must be taken not to violate the survivor’s right to privacy. Further, if the survivor is a minor, then it is mandatory to report the incident to the police under section 19 of the POCSO Act. The doctor is also obliged to record the details of the medical examination promptly and according to the ‘Proforma’ prescribed in the 2014 Guidelines.

Indian law does not condone any act that re-traumatises or stigmatises the survivor during the medical examination. The survivor can file a complaint against the medical practitioner if they are guilty of any of the above-mentioned acts. 

To know more,  read our Medico-Legal Guide for Survivors of Sexual Assault.