Context

On October 31, a two-judge bench of the Supreme Court noted that the two-finger test is a sexist medical practice that re-victimizes and re-traumatizes rape survivors. The Court also issued directions to the Union and state governments to implement the 2014 guidelines of the Ministry of Health and Family Welfare for health providers in sexual violence cases.

What is two finger tests?

The two-finger test involves the medical examiner inserting their two fingers into the vagina of a survivor to note the presence or absence of the hymen and the so-called laxity of the vagina.

Misogynistic belief: While a hymen can be torn and its orifice may vary in size for many reasons unrelated to sex, the origin of the two-finger test lies in the misogynistic belief that a torn hymen is an indication that the survivor is habituated to sex and therefore, cannot be raped or is more likely to make false claims about being raped.

SC prohibited test in Rajesh v. State of Haryana 2013 case: “Medicalization of consent” where women’s bodies are given precedence over their voices. Recognizing this as an invasion of privacy and a violation of a survivor’s dignity, the Supreme Court prohibited the test in Lillu at Rajesh v. State of Haryana (2013).
Guidelines for medico-legal care for survivors of sexual violence: Shortly after, in March 2014, taking forward the recommendations of the Justice J S Verma Committee Report, the Ministry of Health & Family Welfare issued guidelines for medico-legal care for survivors of sexual violence. These guidelines explicitly prohibited the two-finger test and discussed the need for training medical examiners to respond to the needs of the survivors in a sensitive and non-discriminatory manner.

Lack of political will: Nearly eight years since the guidelines were issued, the two-finger test still remains a reality. Its prevalence is a reflection of the complete lack of political will to address the issue.
No pan-India comprehensive review: While fragmented pieces of narratives and research indicate that the two-finger test continues in rape cases to date, it is incumbent upon the executive to undertake a comprehensive pan-India review to assess the nature and extent of the problem.
Change in format and unclarity: The changed format (introduced after the passing of the Criminal Law Amendment Act, 2013) of the medico-legal certificate used by doctors in rape cases did not require them to make a note of the finding of the two-finger test. However, according to the lawyers, this did not mean that the test was not happening anymore. Some says they it was no longer being recorded as such but was still being conducted.
Poor medical infrastructure: The continued existence of the two-finger test is a result of the overall poor state of forensic medicine infrastructure in India.
Lack of awareness: Lack of awareness amongst the medical community about the unscientific nature of the two-finger test.

Government must enforce the protocol: The Court commenting on the sorry state of affairs and issuing directions to the government on enforcement of the protocol including the emphasis on workshops and the medical school curriculum is significant.
Holding a person, a guilty of misconduct: The Court took a step further by holding a person conducting the two-finger test on a rape survivor guilty of misconduct. It is unclear if the Court was making a reference to professional misconduct on part of the medical examiner.

Caregiving to victim: Medical practitioners must see themselves as caregivers when handling sexual violence cases.
Awareness about legal system: Medical practitioners should be made to understand as their role in the criminal legal system, specifically towards rape survivors.
Training of medical examiners: The training in medical school must prepare medical examiners for their role in the justice system.
Police should play an active role: The institution of police should be sensitized on the continued use of the two-finger test in rape cases.
Modules on sexuality: Training and workshops designed for doctors needs to include modules on sexuality and discrimination.

Two finger test is further traumatizing the victim of rape. Despite the directives of courts years ago and unscientific nature, two finger test continues. Women empowerment is not only about the earnings and livelihood its also about the right to privacy and dignity of life.

Mains Question

Q. What is two finger tests? what is the law against the two-finger test? give the reasons for continuation of two finger test?