New Delhi: The Supreme Court has held that the two-finger test on a rape survivor violates her right to privacy, and asked the government to provide better medical procedures to confirm sexual assault. A bench of Justices BS Chauhan and FMI Kalifulla said even if the report of the two-finger test is affirmative, it cannot give rise to presumption of consent on part of a rape victim.
“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,” the bench said.
The two-finger test entails medical inspection of the female hymen. Referring to various international covenants, the judges said rape survivors are entitled to legal recourse that does not violate their physical or mental integrity and dignity.
“Medical procedures should not be carried out in a manner that constitutes cruel, inhuman or degrading treatment and health should be of paramount consideration while dealing with gender-based violence,” the apex court said. “The State is under an obligation to make such services available to survivors of sexual violence. Proper measures should be taken to ensure their safety and there should be no arbitrary or unlawful interference with her privacy,” the bench said.
Keeping in mind the International Covenant on Economic, Social, and Cultural Rights 1966 and the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985, the Supreme Court said, rape survivors are entitled to legal recourse that does not re-traumatise them or violate their physical or mental integrity and dignity. “They are also entitled to medical procedures conducted in a manner that respects their right to consent,” it said.
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