While displaying zero tolerance for conducting two-finger test on the minor rape victim and asking her awkward questions on virginity, the Himachal Pradesh High Court in a most learned, laudable, logical, landmark and latest judgment titled Sachin Kumar @ Sanju vs State of H.P. in Cr.A.No. 214/2020 that was pronounced as recently as on January 11, 2024 has directed the State government to pay Rs 5 lakh as compensation to a minor rape victim who was subjected most humiliatingly to a two-finger test which is strictly prohibited and in addition also asked “demeaning” questions by the doctors during her medical examination. It must be noted that the Division Bench of Hon’ble Mr Justice Tarlok Singh Chauhan and Hon’ble Mr Justice Satyen Vaidya also took strong exception to certain questions in the proforma prepared by the hospital including the question to the rape victim on her virginity. It also merits mentioning that the Court directed all the health professionals in the State to very strictly desist from conducting the two-finger test which has been banned by the Apex Court. The doctors must pay heed that the Himachal Pradesh High Court has warned seriously that apart from other actions that may be taken against such doctors who conduct the two-finger test on rape survivors, they shall also be liable for being prosecuted and punished under the Contempt of Courts Act.
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Division Bench comprising of Hon’ble Mr Justice Tarlok Singh Chauhan and Hon’ble Mr Justice Satyen Vaidya of Himachal Pradesh High Court sets the ball in motion by first and foremost pulling back no punches to state quite forthrightly that, “It was during the course of hearing of the instant appeal, wherein appellant had been convicted under Sections 376, 354 of the Indian Penal Code (for short “IPC”), Sections 6 and 14(3) of the Protection of Children from Sexual Offences Act (for short, the “POCSO Act”) and Sections 66-E and 67-B of Information and Technology Act (for short, the “I.T. Act) by the learned Special Judge, that we noticed that the Civil Hospital Palampur had issued medico legal certificate (for short, the “MLC”), columns whereof, to say the least, are demeaning and to a certain extent even self incriminating and self inculpatory for the child victim. The gross insensitivity shown by all those, who had designed the MLC and its columns, cannot go unnoticed.”
Needless to say, the Division Bench then states in para 2 that, “For it is settled that “rape” is not only a crime against an individual, but also a crime, which destroys the basic equilibrium of the social atmosphere. “Rape” not only lowers the dignity of a woman, but also mars her reputation.”
Further, the Division Bench then also while dwelling on plight of rape victim underscores in para 3 stating that, “The plight of the woman and shock suffered by the victim can be well visualized. The victim of rape grows with traumatic experience and an unforgettable shame haunted by the memory of the disaster forcing her to a state of terrifying melancholia. The torment on the victim has the potentiality to corrode the poise and equanimity of any civilized society. It has been rightly said that whereas a murderer destroys the physical frame of a victim, a rapist degrades and defiles the soul of a helpless female.”
Quite rightly, the Bench notes in para 4 that, ““Rape” is an assault on the individuality and inherent dignity of a woman with the mindset that she should be elegantly servile to men. “Rape” is a monstrous burial of her dignity in the darkness. It is a crime against the holy body of a woman and the soul of the society. It is said that one’s physical frame is his or her temple. No one has any right of encroachment.”
What the Bench finds objectionable is then laid bare in para 5 stating that, “We find columns No. 4 and 5 of the MLC in question not only to be demeaning, but even self incriminating, self inculpatory and hitting directly on the privacy of the child victim as would be evident from these columns, that are reproduced for ready reference:-
4. Whether pregnant: xxx xxx
a) date and time of last coitus: xxx xxx
b) coitus if any, prior to alleged assault: xxx xxx Date:_____ Time:__________ Condom used or not:___________.
5. Patient’s statement, whether is a virgin: xxx xxx.”
Worse still, the Division Bench points out in para 6 that, “If that was not enough, the Doctors issuing the MLC in question have even conducted the “two-finger test” despite the fact that this test has been held to be violative of right of rape survivors to privacy, physical and mental integrity and dignity by the Hon’ble Supreme Court in Lilu @ Rajesh vs. State of Haryana, (2013) 14 SCC 643, wherein the Hon’ble Supreme Court observed as under:-
7. So far as the two finger test is concerned, it requires a serious consideration by the court as there is a demand for sound standard of conducting and interpreting forensic examination of rape survivors.
13. In view of International Covenant on Economic, Social, and Cultural Rights 1966; United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985, rape survivors are entitled to legal recourse that does not re-traumatize 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. 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 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 his privacy.
14. Thus, in view of the above, 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.”
Do note, the Division Bench notes in para 10 that, “The proforma designed by the Civil Hospital, Palampur is bad in law for another reason also as it completely ignores Section 53A of the Indian Evidence Act as introduced by amendment Act No. 13 of 2013.”
Be it noted, the Division Bench notes in para 11 that, “In addition to above, the proforma also violates guidelines and protocols that have been issued by the Ministry of Health and Family Welfare, Government of India for health professionals for dealing with survivors of sexual violence. Guideline 18-B is relevant to the context and the same is reproduced as under:-
“18. Local examination of genital parts/other orifices A……………..
B. In case of female survivors, the vulva is inspected systematically for any signs of recent injury such as bleeding, tears, bruises, abrasions, swelling, or discharge and infection involving urethral meatus & vestibule, labia majora and minora, fourchette, introitus and hymen.
· Examination of the vagina of an adult female is done with the help of a sterile speculum lubricated with warm saline/ sterile water. Gentle retraction allows for inspection of the vaginal canal. Look for bruises, redness, bleeding and tears, which may even extend onto the perineum, especially in the case of very young girls. In case injuries are not visible but suspected; look for micro injuries using good light and a magnifying glass/ colposcope whatever is available. If 1% Toluidine blue is available it is sprayed and excess is wiped out. Micro injuries will stand out in blue. Care should be taken that all these tests are done only after swabs for trace evidence are collected.
· Per speculum examination is not a must in the case of children/young girls when there is no history of penetration and no visible injuries. The examination and treatment as needed may have to be performed under general anaesthesia in case of minors and when injuries inflicted are severe. If there is vaginal discharge, note its texture, colour, odour.
· Per-Vaginum examination commonly referred to by lay persons as ‘two- finger test’, must not be conducted for establishing rape/sexual violence and the size of the vaginal introitus has no bearing on a case of sexual violence. Per vaginum examination can be done only in adult women when medically indicated.
· The status of hymen is irrelevant because the hymen can be torn due to several reasons such as cycling, riding or masturbation among other things. An intact hymen does not rule out sexual violence, and a torn hymen does not prove previous sexual intercourse. Hymen should therefore be treated like any other part of the genitals while documenting examination findings in cases of sexual violence. Only those that are relevant to the episode of assault (findings such as fresh tears, bleeding, edema etc.) are to be documented.
· Genital findings must also be marked on body charts and numbered accordingly.””
Quite ostensibly, the Bench then rightly points out in para 12 that, “From the perusal of the aforesaid guidelines, it is clear that “two-finger test, which as per the medical term, is called “per-vaginum examination” has been strictly prohibited under these guidelines and protocols. It is pertinent to mention here that these guidelines stand adopted by the Government of Himachal Pradesh and thus are applicable to the health professionals throughout the State of Himachal Pradesh.”
Most disconcertingly, the Division Bench then laments in para 13 that, “Inspite of all this, the minor child victim in the instant case has been subjected to “two-finger test”, which has violated her privacy, physical and mental integrity and dignity apart from creating fear and trauma to the child victim.”
Most forthrightly, the Division Bench then mandates in para 14 holding that, “What is still worse is that the child victim had to suffer untold miseries, especially when confronted with columns No. 4 and 5 of the MLC (supra), which apart from being humiliating are even self incriminating and in the given facts and circumstances, those irresponsible medical professionals, who designed the proforma and those, who medically examined the child victim, cannot be allowed to go scot-free and the child victim essentially and legally needs to be compensated.”
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It is then clarified in para 15 by the Division Bench observing that, “We had also called the Secretary (Health) to the Government of Himachal Pradesh to know the stand of the State. She appeared and was not in a position to justify the proforma as issued by the Civil Hospital, Palampur and stated that this was designed by some of the doctors at Civil Hospital, Palampur alone and such MLCs are not being issued anywhere in the State of Himachal Pradesh and have been withdrawn with immediate effect even from Civil Hospital, Palampur.”
Most significantly, the Division Bench directs in para 16 that, “Since “two-finger test” is violative of right of rape survivors to privacy, physical and mental integrity and dignity, therefore, in the given background, the respondents are directed to pay a sum of Rs.5 lacs, as compensation, to the child victim, for the trauma, embarrassment, humiliation and harassment having been caused to her at the hands of the Doctors in the Civil Hospital Palampur, which shall, at the first instance, be paid by the State and thereafter recovered from the erring medical professional(s), after holding an inquiry. The inquiry shall be held against all those Doctors, who designed the proforma and thereafter responsibility be fixed and the mere fact that some of these Doctors have since retired will not come in the way of the respondent-State in fastening the financial liability on them. Further, inquiry be held against all those Doctors, who medically examined the child victim and issued the MLC in question and thereafter responsibility be fixed and here again, the mere fact that the Doctor(s) has/have retired shall not come in the way to fix both liability as well as responsibility.”
Most bluntly, the Division Bench directs in para 17 stating that, “In the meanwhile, all the health professionals of the State of Himachal Pradesh are directed to strictly desist from undertaking “two-finger test” know as “per-vaginum examination” on the rape survivors or else apart from other action(s) that may be taken against them, they shall be liable for being prosecuted and punished under the Contempt of Courts Act.”
Lamentably, the Division Bench then laments in para 18 observing that, “Before parting, we are constrained to observe that unfortunately even the learned Special Judge and for that matter, even the learned District Attorney have not been sensitive enough in conducting the case.”
Finally, the Division Bench concludes by directing in para 19 that, “List on 27.2.2024, when report of inquiry as well as the receipt acknowledging payment of Rs.5 lac to the child victim be placed on record.”
In sum, we thus see that the Himachal Pradesh High Court has very rightly taken the State Government to task for not ensuring that two finger test are not strictly banned and no “demeaning” questions are asked to a minor rape victim and imposed Rs 5 lakh as compensation to be paid to her. In addition, the Court also most commendably held that doctors would be liable for conducting two finger test on rape survivors. Very rightly so!