Enforcing the Ban on the Two-finger Test- The Hindu Editorial Analysis

In 2014, Health Ministry issued ‘guidelines and protocols’ proscribing the application of the two-finger test. Guidelines state that a copy of medical report must be given immediately to the survivor.

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Ban on Two-Finger Test UPSC Relevance

Ban on Two-Finger Test: Recently, SC banned the Two-Finger Test for rape victims. Ban on Two-Finger Test is important for UPSC Mains Exam (Governance).

Ban on Two-Finger Test in News

On October 31, the Supreme Court declared that any person conducting the ‘two-finger test’ on rape or sexual assault survivors will be found guilty of misconduct.
In 2013, too, in Lillu v. State of Haryana, the Supreme Court had held that the two-finger test violates the right of rape survivors.

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SC on Two Finger Test

The Supreme court has dismissed the validity of Two finger Test on following grounds-

Lack Scientific Backing: The Two finger test is “regressive and invasive” and has “no scientific basis as it neither proves nor disapproves allegations of rape”.
Victimization Concerned Person: Two Finger Test “re-victimises and re-traumatises women who may have been sexually assaulted.”

Legal Provisions Related to Two Finger Test

Evidence Act: Section 53A of the Evidence Act states that previous sexual experience “shall not be relevant to the issue of consent or the quality of consent” in prosecutions of sexual offences.
Health Ministry’s Guidelines: In 2014, the Union Ministry of Health issued ‘guidelines and protocols’ proscribing the application of the two-finger test.
- It directed health providers to conduct a medical examination as per the detailed ‘proforma for medico-legal examination of survivors/victims of sexual violence’, a copy of which was annexed to the guidelines.
- The guidelines state that a copy of the medical report must be given immediately, and free of cost, to the survivor/victim.
- These guidelines were circulated to hospitals, but it appears that the instructions were not taken seriously by the doctors handling medico-legal cases.

Implications of Using Two Finger Test

It is important to note that the doctor’s medical opinion has a vital bearing on the outcome of a criminal case.
In the case of sexual assault, the doctor is required to mention marks of resistance and sign(s) of recent intercourse.
She is not supposed to give her opinion about rape, as rape is a legal term and not a medical diagnosis.
It is for the investigating officer to conclude after their investigation whether or not rape was committed. An unsolicited opinion by a medical practitioner may create doubt and weaken the case.
Therefore, it is undesirable to conduct the two-finger test (on a victim of sexual assault), which has no evidential value in the investigation.

Way Forward Implementing the Ban on Two Finger Test

Workshop for Health Practitioners: The Supreme Court said that workshops must be conducted. This is relevant as there is no institutional platform to share such judgments with medical practitioners.
Ensuring Coordination: Forensic science laboratories (FSLs) generally work under the Home Departments of States.
- Funds for the modernisation of the police are also planned and utilised by the police under the supervision of the Home Department. A part of these funds are used for the upgradation of FSLs.
- The police department’s interaction with the FSL is generally continuous, and both understand each other’s requirements.
- However, despite the Health Department’s relevance in the investigation of offences relating to assault, rape, age determination, etc., interaction between the Health Ministry and the Home Ministry (police) is limited.
- Further, the Health Department is not one of the pillars of the Inter-Operable Criminal Justice System (ICJS).
  - ICJS is an extension of the Home Ministry’s mission mode project, the Crime and Criminal Tracking and Network Systems, and is operational at each police station of the country.
Improving training: Training still remains one of the most neglected branches in most departments.
- - With limited in-house training capacity, officers are often not spared for refresher courses even once in five years.
  - The communication channels between the heads of department and the officers are never direct and straight.
  - It is, therefore, quite likely that the two-finger test will continue to be conducted in some remote areas.
  - The erring doctors (if any) will have all the reasons to justify their act and evade disciplinary action for any ‘misconduct’ so contemplated.

Conclusion

All departments which have a bearing on the investigation of offences or are stakeholders in the criminal justice system must come together periodically so that they can exchange best practices, latest developments in law, and court rulings.

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