Finger test infringes on privacy right of rape victims

The court stressed the need for sensitising the police to avoid such practice as a routine measure, particularly in cases of children, minor girls and married women, while making it clear that the finger test was "irrelevant".

"Per Vagina Test/ Finger Test is irrelevant to sexual violence trials. This test is violative of the Fundamental Right of Privacy, an important Constitutional Right of the victim," Additional Sessions Judge Kamini Lau said.

The Per Vagina (PV) test, which is normally called the finger test, is being carried out routinely on victims of sexual offences. This test only establishes whether the vestibule is congested and whether one, two or three fingers can be inserted.

"State action cannot be a threat to the Constitutional right of an individual. What has shocked my conscious is the fact that this PV Test/ Finger Test is being carried out in routine on victims of sexual offences by the doctors (even on minors), thereby reflecting a rampant violation of the Constitutional Rights of such victims," Lau said.The court made the observations while pronouncing the judgement in a case relating to outraging the modesty of a woman.

It said that holding of the test was disgraceful for the victims and did not have any bearing on the trial.

"The humiliation which a rape victim suffers in the court on account of existing procedures is impermissible. This court is of the view that the existing medical and legal procedures which are irrelevant to the trial of the rape cases, are required to be reviewed and stopped forthwith," the court said.

It pointed out that the manner in which PV Test was being carried out by inserting a finger inside the vagina of a woman irrespective of age or marital status was violation of her body as well as Right to Life as enshrined under Article 21 of the Constitution of India.

Secondly, the test, which permits a doctor to state whether a woman is "habituated to sex" or "used to sex" in a public proceedings without having due regards for confidentiality, is in itself violative of the Right of Privacy of a woman regarding her sexual life in as much as it tends to expose her private sexual life, it said.

The court further said once the character evidence of a rape victim is no longer admissible in evidence, the PV Test was not relevant to the trials.The court pointed out that the PV test only shifted the focus of the investigations and the trial in sexual offences cases from the accused to the victim, which is impermissible.

The test was being routinely conducted by doctors on victims of sexual abuse and rape, be it a minor, unmarried girl or married woman, without having any regards to the fact that the opinion of the doctors rendered after conducting such a test has no bearing with regard to the guilt or otherwise of the accused, it said.

Lau said, in case the victim is unmarried, the hymen test is conducted to check if the cord is intact and in case of use of force, any signs of tearing or bruising off near the vagina are noted and having conducted that test, no further examination is required.

The court directed that the copy of its judgement should be forwarded to the Delhi Police Commissioner to sensitise the police officers with the issue.

It said if the test was necessary, then it should only be carried out with the consent of the victim/ her guardians and that too after taking due permission from the court.