New Delhi: The Himachal Pradesh High Court has ordered a compensation of Rs 5 lakh to a minor rape victim who was subjected to the two-finger test during her medical examination, and was also asked questions about her virginity.
The court was hearing an appeal filed by Sachin Kumar alias Sanju, who had been convicted under Sections 376 (punishment for sexual assault) and 354 (assault or criminal force to a woman with intent to outrage her modesty) of the Indian Penal Code, along with provisions of the Protection of Children from Sexual Offences (POCSO) Act, 2012, and the Information Technology Act, 2000.
During the course of the hearing, the court came across the medico-legal certificate (MLC) issued for the victim in the case. It then said that the columns of this certification — which included questions on virginity and sexual intercourse — were “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,” the court said.
Doctors issuing the MLC had also conducted the “two-finger test” despite the fact that it has been held by the Supreme Court to be violative of the right of rape survivors to privacy, physical and mental integrity and dignity.
In a judgment passed on 11 January, Justices Tarlok Singh Chauhan and Satyen Vaidya asserted that “since two-finger test” is violative of the right of rape survivors to privacy, physical and mental integrity and dignity, the child victim should be paid Rs 5 lakh as compensation.
This, it said, was “for the trauma, embarrassment, humiliation and harassment having been caused to her at the hands of the doctors in the Civil Hospital Palampur”.
The court said the amount would be paid by the state government for now, but shall be recovered from the erring medical professionals, after an inquiry is held.
“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,” the court added, clarifying that the mere fact that the doctors may have retired shall not come in the way of fixing financial liability and responsibility on them.
Meanwhile, all health professionals of Himachal Pradesh are directed to strictly desist from conducting the “two-finger test” on rape survivors, the court said. It warned that if this order is violated, apart from other actions that may be taken against them, they shall also be liable for being prosecuted for contempt of court.
‘Untold miseries’
In its order, the bench went through the form of the MLC, which required medical professionals to fill in information on whether the victim was pregnant, “date and time of last coitus”, “coitus if any, prior to alleged assault”, “patient’s statement, whether is a virgin”.
It found these columns to “not only be demeaning, but even self-incriminating, self-inculpatory and hitting directly on the privacy of the child victim.”
It further said that this proforma is also “bad in law” because it violated Section 53A of the Indian Evidence Act, which was inserted in 2013. The provision says that the evidence of a victim’s character or her previous sexual experience shall not be relevant to the issue of consent in sexual offence cases.
Additionally, the Ministry of Health and Family Welfare also issued guidelines in 2014, barring the test in rape and sexual assault cases.
Taking note of these guidelines and the apex court orders, the high court observed, “In spite 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.”
The HC then said that the proforma also violates guidelines and protocols issued by the Ministry of Health and Family Welfare. The child, it said, “had to suffer untold miseries, especially when confronted with columns No. 4 and 5 (questions on virginity and coitus) of the MLC”.
The court also observed that the trial court and the government lawyer “have not been sensitive enough in conducting the case.”
It then asserted that “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”.
(Edited by Richa Mishra)
Also Read: Inform rape survivors about right to abort at the time of filing FIR, says Karnataka HC