On Tuesday, the Delhi High Court held that so-called virginity tests of a woman who is accused of a crime or is in custody would violate her fundamental right to life under Article 21 of the Constitution.
So-called virginity tests involve medical practitioners checking whether a woman’s hymen is intact, in an attempt to gauge whether she has ever engaged in sexual activity. Till now, courts has banned such examinations for sexual assault victims. However, this judgement extends this right to women accused of crimes as well.
The case resulted from the murder of a nun, Sister Abhaya, who was found dead in a convent in Kerala’s Kottayam in 1992. It was alleged that Abhaya had been killed by a priest Father Thomas Kottoor and another nun, Sister Sefi, after she found them engaging in a sexual act.
In 2020, a special Central Bureau of Investigation court in Kerala sentenced Father Thomas Kottoor and Sister Sefi to life imprisonment for the murder of Sister Abhaya. However, this verdict has been suspended by the Kerala High Court, which is hearing the appeal.
For the purposes of investigation, in November 2008, the Central Bureau of Investigation had made Sefi undergo the two-finger test, which is conducted to determine whether the hymen is broken and to text the “laxity of the vagina”. In 2009, Sister Sefi filed a petition before the Delhi High Court challenging this test.
She argued that “her virginity had no nexus with the alleged murder of the deceased”. Sephy said that it violated her “right to live with basic human dignity, right to honour, reputation and privacy enshrined under Article 21” and asked for a declaration that such a test cannot be done on any accused and also asked to be paid compensation.
Sefi said that she had been forced to undergo the test. The bureau had asked her to sign a document, which turned out to be a consent letter for a two-finger test, she claimed. Sephy argued that she was put under “severe mental torture” by this. While the test showed that her hymen was still intact, the Central Bureau of Investigation claimed that she had undergone hymenoplasty, a surgery to suture back the hymen.
However, the Central Bureau of Investigation said that sexual history was integral to the investigation of the murder. It further argued that Sephy had consented and that there were woman officers present while the test was conducted. The bureau also argued that while there are various cases saying that a so-called virginity test cannot be conducted on sexual assault victims, there is no judgement saying it cannot be done on an accused person.
What did the court hold?
The court reiterated several judgements that have outlawed the two-finger test on sexual assault victims on the grounds that it violated their dignity under Article 21. “This court has time and again deprecated the use of this regressive and invasive test in cases alleging rape and sexual assault,” it quoted from a judgement delivered in October 2022.
Moreover, such a test was scientifically inaccurate and “neither movies nor disprove allegations of rape”, it noted. Further, the court also noted that these tests were still being conducted, “despite…there being definite studies that in some women hymen may not tear during vaginal intercourse, while in others they may tear even without vaginal sexual intercourse due to sports and other activities and some women may not even have one”.
The court said that since this test was banned for victims of sexual assault it cannot be allowed for people accused of a crime since even such people have their fundamental right to life under Article 21. The bench said, “Fundamental rights available to an accused/ prisoner/ detainee are not suspended so far as the question of their privacy and dignity is concerned.”
The Central Bureau of Investigation had argued that such a test is allowed according to Section 53 of the Code of Criminal Procedure, which talks about the medical examination of a person who has been arrested for committing an offence and there are “reasonable grounds” to believe that this examination would provide evidence about the offence being committed. The examination in this section refers to the examination of blood, semen, sweat, hair and so on.
However, the court said that the section referred to examination by “modern and scientific techniques” which would not include a so-called virginity test since it was “archaic and irrational”.
What was the relief granted?
The court said that this judgment should be circulated to all investigation agencies across the country and that the Delhi judicial and police academies should include this information in their training.
It said that no action can be taken against the Central Bureau of Investigation, since in 2008, when this test was conducted, there had not been any court judgements outlawing this practice, even for sexual assault survivors.
However, the court allowed the petitioner to approach the National Human Rights Commission to ask for compensation regarding claims of custodial torture, after her trial before the Kerala High Court is concluded.
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