Jharkhand High Court Prohibits Two-Finger Test and Reinforces Mandatory Registration of Zero FIRs
The Jharkhand High Court in a landmark order has not allowed the use of the infamous two-finger test in rape cases and also asked the police to strictly follow the law on filing of zero FIRs to enhance the rights and dignity of sexual assault victims. The judgment is a significant contribution to the development of a survivor-centred criminal justice system and serves to affirm the values of dignity, equality and access to justice in the constitution.
These directions were issued by the Court in the context of the pendency of a case concerning the deficiencies in dealing with sexual assault cases. Noting that the two-finger test is “obsolete and unscientific” and infringes upon the “privacy and dignity of the survivors,” the High Court emphasized that such practices are now “long obsolete.
The two-finger test was a practice in which the medical examiner would test the laxity of a woman’s vaginal muscles and make conclusions based on that to determine her sexual history (or whether she was a sexual deviant). For decades, women’s rights activists, doctors, and lawyers have looked askance at the use, finding it scientifically illogical and a clear violation of equal rights. The test changed the focus from the alleged offence, to survivor’s past sexual conduct, and continued the stereotype of women.
A woman’s sexual history has been consistently established by the Supreme Court to be irrelevant to the proceedings regarding the rape. Courts have stressed that the consent to sexual activity in a specific event cannot be presumed to have taken place in a past event. Despite these judicial statements, there were still reports of the test being used in some jurisdictions, thereby triggering additional judicial action.
The Jharkhand High Court reminded that there is an explicit ban on the practice and that medical examination needs to be done in keeping to modern scientific standards and complete respect of the survivor’s bodily autonomy. Decision is in line with the constitutional protection under Article 21, which provides for right to life, personal liberty, privacy and dignity.
Similarly, the Court had insisted on compulsory registration of Zero FIRs in sexual offence cases was of equal importance. Zero FIR is an FIR that can be filed at any police station, regardless of its jurisdiction. The complaint is then passed on to the police station where the offence occurred. Introduced to prevent the victim being denied immediate access to the criminal justice system for technical jurisdictional objections.
The High Court noted that it was “common knowledge” that delays in filing of complaints had a “deterrent effect” on survivors’ pursuit of justice and could lead to the loss of evidence. The Court was pushing for the implementation of the Zero FIR approach to create a level playing field from those who face obstacles in filing a complaint.
The decision will have far-reaching consequences for medical practitioners, law enforcement and the judiciary. Police officers have the duty to ensure that all complaints are promptly registered, and hospitals and medical practitioners are obliged to adhere to the legally approved examination procedures. Failure to meet these standards can result not only in poor investigations, but in a violation of the rights of survivors.
A general trend in criminal jurisprudence in India has been moving away from an accused-centric, procedural approach and towards a victim-centric approach, as seen in the judgment. Increasingly, courts have acknowledged that the way that institutions respond to sexual violence can have a huge impact on a survivor’s willingness to seek justice.
The High Court of Jharkhand’s verdict highlights two fundamental principles: the dignity and respect owed to survivors of sexual violence and the importance of granting them access to justice, which should not be hampered by antiquated practices or legal technicalities. The Court’s decision to abolish the two-finger test and compulsory registration of Zero FIR has enhanced the legal protections of survivors and taken steps to make the criminal justice system more compassionate and responsive.
