“Any person who conducts the ‘two-finger test’ (while examining a person alleged to have been subjected to a sexual assault) in contravention of the directions of this court shall be guilty of misconduct,” the bench of Justices DY Chandrachud and Hima Kohli warned. “Home secretaries of each state shall in addition issue directions to DGPs in this regard. The DGPs shall, in turn, communicate thesedirections to SPs,” the bench said to ensure scrupulous compliance of its orders.
Justice Chandrachud said it was regrettable the two-finger test continues to be conducted even today despite directions against it. It “re-victimises and re-traumatises women, who may have been sexually assaulted, and is an affront to their dignity. The ‘two-finger test’ or per vaginum test must not be conducted”.
The bench said whether a woman is “habituated to sexual intercourse” or “habitual to sexual intercourse” is irrelevant for the purposes of determining whether the ingredients of Section 375 of the IPC (rape) are present in a particular case. In terms of Section 53A of the Evidence Act, evidence of a survivor’s character or of her previous sexual experience with any person shall not be relevant to the issue of consent or the quality of consent, in prosecutions of sexual offences, it said.