Two-Finger Test Done By Indian Air Force Doctors: Unconstitutional And Violative Of A Woman's Dignity
“It is need of the hour to implement the ban on ‘two-finger test’ on rape survivors with full force”, the Jammu & Kashmir High Court said. When did it say this? December of 2020. “The virginity test by its very nature is invasive and an infringement on the privacy of a woman to her body. It is a blatant violation of the dignity of a woman. The conclusion drawn from these tests about a woman's sexual history and character directly attacks her dignity. It leads to adverse effects on the social and cultural standing of a victim”, citing India judgments the Lahore High Court held this. Why is it that despite being held so in India and where other Courts of law follow the guidelines towards such a test that disgusts and shakes one to their core, it is still being practised in India?
Where there are several laws solely directed towards the protection of a woman's dignity and modesty, even so, protecting her dignity while she is in the womb of her mother, it is being witnessed that the gross violations of Fundamental Rights of woman’s dignity is not stopped. One such incident took place whereby Rekha Sharma, head of the National Commission for Women (NCW), wrote to the Air Chief Marshal, requesting an investigation into media allegations that an IAF officer in Coimbatore was subjected to an invasive two-finger test by Indian Air Force medics after being raped by a colleague.
Rape Complaint Filed By Woman Air Force Officer
While the country is still recovering from the Covid pandemic, it seems to appear that the violence against women has not taken a backseat even in these circumstances. An Air Force flight lieutenant was recently arrested by the All Women Police in Coimbatore, Tamil Nadu, on 26th September, in response to a rape complaint by a woman air force officer against a said colleague.
The woman officer had alleged that on 10th September, she took a painkiller in response to an ankle injury, according to which that night, she had two drinks (one of which was served to her by the accused officer) with a group of friends. The officer alleged that she was sexually assaulted by her colleague whom she saw enter the room and sexually assaulted her even whilst she was in a subconscious state.
No Action Taken by Air Force Authorities
The woman AFO admitted to having approached the police in the backdrop of immense pressure from certain senior Air Force officials to withdraw the complaint. She further added in her complaint that she reported the incident to the concerned authorities at the Air Force training academy in Coimbatore, where she was studying when the incident took place. However, a grossly callous attitude met such a complaint, forcing her to withdraw her complaint initially.
Not only did the physical examiners at the Air Force Hospital allegedly delay the handing over of evidence to the authorities, the room where the woman had reportedly been raped was also not sealed. Additionally, the woman officer faced severe mental trauma with the accused being on the same campus. Besides, there appears to have been a gross violation of the Supreme court's order since the doctors at the Air Force Hospital have conducted the two-finger test on the woman officer, which the Supreme Court banned in 2013.
On arrest, the accused was relatively confident that the police had no authority to arrest and no power to produce him before the magistrate. Taking the defence of section 72 of the Indian Air Force Act, 1950, he claimed, "as per Indian Air Force Act, 1950, the Court Martial, instituted to try the above offence has jurisdiction". Unfortunately, despite the survivor's demands for a police investigation, the Tamil Nadu Court on 30th September upheld the Indian Air Force's appeal to hand over the accused officer to the IAF.
The Two-Finger Test: A Question of Justice And Dignity
The status of a woman's vagina is accorded greater weight than her words in many places worldwide. Virginity testing is still widespread in many countries, and it impacts two types of women: those who have been raped and want justice and those who are about to marry. In the latter situation, the test is used to determine a woman's "purity" or "chastity" by examining the presence of her hymen (for example, in 2018, Moroccan civil society launched an effective campaign against the virginity test imposed on to-be married women with the slogan "my vulva belongs to me").
This test is done in India as part of the rape victim's sexual assault assessment. When a doctor inserts two fingers into the victim's vagina, he is performing this test. The test determines the victim's laxity and her sexual activity, i.e., whether or not the victim is sexually active. This test can be used to determine if the hymen is broken. Inserting one finger into the vagina with strain indicates that the victim is a virgin. Still, insertion of two fingers into the vagina with ease or smoothness demonstrates that the female is sexually active.
The results of these types of tests were frequently given to lawyers, who utilize them as evidence in court to defend their clients. The entire procedure is inequitable to women and therefore unethical. The technique also lacks a scientific foundation. The Ministry of Health and Family Welfare of the Government of India has entirely rejected it in its guidelines and instructions for sexual abuse victims. They cite the following grounds for terminating this process:
Thus, when documenting examinations in situations of sexual violence, the hymen should be treated like any other part of the genital, and other events such as bleeding and oedema should be carefully documented.
The combined efforts of the judiciary, activists, governments and non-governmental organizations have resulted in significant progress in delivering justice.
In India, this practice was also prevalent in the Indonesian army. The medical officers would push their fingers into recruits' vaginas to examine if the hymen was still intact and if they were still virgins. This controversial two-fingers test was done away with recently by the Indonesian army's Chief of Staff Andika Perkasay.
Despite a change in the world's acceptance of this test and Indian regulations, which disregard its validity, the present case of the Indian Air Force shows us the horrifying reality of Indian society.
India's premier women right's body, the National Commission for Women and Children, was quick to slam the use of the infamous two-finger test on the victim by the IAF officials. The commission rightfully pointed out the violation of the Supreme Court's order concerning two-finger tests and the right to privacy and mentioned the trauma the victim must have had gone through due to the unthoughtful decision of the medical officers.
The commission, in its letter, also urged the Air Chief Marshal to take an interest in the matter and ensure that necessary guidelines already laid down are communicated to the doctors in IAF and are followed diligently.
The Ministry of Health and Family Welfare issued guidelines for medico-legal care for survivors of sexual violence in 2014 after the Supreme Court of India found the test to violate fundamental rights. They wanted to get rid of things like the ‘two-finger test’. However, a report in 2017 by Human Rights Watch found that doctors continue to conduct the “invasive, humiliating, and inhumane finger test to make degrading characterizations”.
Change can only be brought about when the people responsible for the shift understand and acknowledge the reasons for changing old practices, which no longer find any justification. The Federation or the Provincial Government have not acted per the Constitution, the law, or international obligations by simply documenting change and not implementing it. Hence a concerted effort must be made to ensure that virginity tests are stopped in totality.
In the name of medical examination, TFT done is not only an inhumane practice but it is against the dignity of women and is unconstitutional (A. P. Bhanu, Mathura to Nirbhaya: A Journey of Dignity on Trial (2014)).
The authors are final year law students of Amity Law School, Delhi (affiliated to Guru Gobind Singh Indraprastha University) and Research Assistants to Prof. (Dr.) Arvind P. Bhanu (Acting Director, Amity Law School, Delhi)
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