The Supreme Court today allowed an application for impleadment filed on behalf of CEHAT (Centre for Enquiry into Health and Allied Themes) in a matter where it will consider the constitutional validity of the two finger test and prayers for the framing of guidelines for the medico-legal assistance for victims of rape.
CEHAT’s application was allowed in the case of Nipun Saxena and Anr vs. Union of India and Ors. WP (C) 565 of 2012, filed by Nipun Saxena, a law student. CEHAT will now be a party in the case.
The two finger test is used to examine whether a survivor of sexual assault is “habituated” to sexual intercourse by determining whether the vaginal opening is broad/narrow. This is used as a measure to determine whether consensual sexual activity has taken place, based on the reasoning that a woman who is habituated to sexual intercourse is likely to have consented. Though the Supreme Court has held that the results of the test are not material while determining whether a woman consented, the test continues to be used.
CEHAT is represented by Anand Grover, Senior Counsel and Director of the Lawyers Collective HIV/AIDS Unit. It will be argued that using the past sexual activity of a woman as evidence of her consent and subjecting her to the two finger test is degrading and violates the right to dignity, guaranteed as a part of the right to life under Article 21 of the Constitution. The test itself is one of the most unscientific methods of examination used in the context of sexual assault and has no forensic value. Whether a survivor is habituated to sexual intercourse prior to the assault has absolutely no bearing on whether she consented when the rape occurred.
CEHAT will also seek the framing and implementation of a uniform, gender-sensitive protocol for the examination, documentation and treatment of a sexual assault survivor across the country using the protocols and manual developed by them.
The Union of India has been granted time to file a response.
For full text of the Impleadment Application please click here