J&K High Court Desists Health Professionals from Carrying Out Two-Finger Test on Rape Victims

A Bench of acting Chief Justice Rajesh Bindal and Justice Sanjay Dhar on Thursday strictly desisted health professionals of the Union Territory of Jammu and Kashmir and Union Territory of Ladakh from carrying out a two-finger test on rape victims.

Rape is not merely a physical assault but it is also a destruction of the personality of the survivors: HC

The Court ordered all the subordinate courts of Jammu & Kashmir and Ladakh to refrain from disclosing the identity of rape victims in their proceedings. This direction was served after the High Court came to know that the trial court mentioned the name of the rape victim several times along with subjecting her to the unconstitutional two-finger test.

The bench further added, "rape is not merely a physical assault but it leads to the destruction of the personality of the survivors. Hence, Courts have to act sensitively while dealing with such cases, especially while referring to the prosecutrix. 

Two-finger test” is unconstitutional as it violates the right to privacy of the rape survivors: HC

This observation came while the bench was hearing an appeal filed against a judgment passed by the Principal Sessions, Judge, Bhaderwah wherein the accused was acquitted from the charge of rape.

In this case, Additional Advocate General Aseem Sawhney on behalf of the state submitted that the prosecutrix was minor at the time of the occurrence and she had in her statement fully supported the prosecution case. Further, he added that the trial court had discredited the statement of the prosecutrix on mere technicalities and flimsy grounds.

In the ongoing proceedings, the court placed its reliance on the apex court verdict in Lillu and others v. State of Haryana case, where the Supreme Court had observed that the “two-finger test” is unconstitutional as it violates the right to privacy of the rape survivors and was an affront to the physical and mental integrity and dignity.

Moving ahead the bench also held that trial court mentioned the name of prosecutrix at several places in its judgment.

“Although, the prohibition contained in Section 228-A (Prohibits disclosure of the identity of the victim of certain offences) may not strictly apply to the judgment of a Court, yet the Courts must avoid disclosing the name(s) of prosecutrix in their orders and judgment, so as to avoid embarrassment and humiliation to a victim of rape,” the High Court reaffirmed.

The case itself was admitted and will now be heard on merits