Meghalaya Informs Apex Court That It Has Issued Circular Prohibiting Doctors From Practicing Two Finger Test On Rape Victims
The State of Meghalaya has prohibited doctors from practicing the two-finger test on the survivors of sexual offences after the Supreme Court expressed its dismay over the continued use of the "two-finger test" in a rape case, despite its condemnation.
The Bench of Justice JB Pardiwala and Justice Sanjay Karol said, “We hope and trust that the circular referred to above issued by the State of Meghalaya is implemented and abided in its letter and spirit. We hope that in future we may not have to once again condemn the State of Meghalaya for such a serious lapse…In view of the aforesaid, we close this matter dismissing the Special Leave Petition.”
Senior Advocate Sonia Mathur appeared for the Petitioner whereas Advocate General Amit Kumar appeared for the Respondents.
A petition was filed by a convict assailing the judgment passed by the Meghalaya High Court at Shillong by which the High Court dismissed the appeal filed by the convict and affirmed the judgment and order of conviction by the Trial Court. The Convict was held guilty for the offences punishable under Sections 6 and 4 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO’) and Section 376(2) of the Indian Penal Code, 1860 (‘IPC’).
The Advocate General has also tendered a circular dated June 27, 2024, issued by the State of Meghalaya, Health and Family Welfare Department prohibiting the “two-finger test” and disciplinary action for its non-compliance.
The Circular stated, “Subject: Prohibition of the Two Finger Test and Disciplinary Action for Non-Compliance: The Hon’ble Supreme Court of India and the Ministry of Health and Family Welfare have prohibited the practice of conducting the Two Finger Test (TFT) on survivors of sexual assault. This practice is scientifically baseless, traumatizing, and violates the survivor’s dignity and rights. The Health and Family Welfare Department, Government of Meghalaya, is committed to upholding the rights and dignity of all individuals and ensuring that survivors of sexual assault receive appropriate and respectful medical care. Towards this objective, this Circular is issued for compliance by all Government Doctors.”
The Court had previously expressed its dismay over the continued use of the "two-finger test" in a rape case, despite its condemnation by the Apex Court. The Court had observed that action proposed to be taken against persons who continue to conduct the said test should be specific and consequences must be spelt out.
The Circular also added, “Any doctor found conducting the test will be held guilty of misconduct and strict disciplinary action will be initiated in accordance with the Meghalaya Discipline and Appeal Rules 2019. This may include suspension, imposition of minor or major penalties, and other legal actions as deemed appropriate.”
The case, dated back to October 26, 2013, brought to light the persistence of the controversial practice even after the Supreme Court's landmark ruling in Lillu Alias Rajesh and Anr. v. State of Haryana (2013), which declared the test violative of a rape victim's right to privacy.
The Court referred to the order passed by it on May 7, 2024, which held, “On going through this, we found that what was stated therein is only that in case such test being conducted, same would be treated as misconduct and appropriate disciplinary action would be taken against the person. When a particular practice which is deprecated repeatedly by this Court and described it as a regressive and invasive nature, we are of the considered view that the proposed action in terms of the said letter dated 29.4.2024 should have been specific and the consequences must have been spelt out as of serious nature.”
Prior to this, the Court had sought clarification from the State of Meghalaya regarding measures taken to eliminate the practice of the "two-finger test" in rape cases.
Advocate General had submitted that in compliance with the decision of this Court in State of Jharkhand vs. Shailendra Kumar Rai @ Pandav Rai, appropriate action to eradicate the evil practice has been taken. Additionally, Kumar had also referred to the guidelines against this practice and a recent communication highlighting the consequences of violating the ruling in Shailendra Kumar Rai's case. Further, he sought time to get instructions on the question put forth by the Court.
Accordingly, the Court dismissed the Petition.
Cause Title: Sunshine Kharpan v. The State of Meghalaya & Ors
Appearances:
Petitioner: Senior Advocate Sonia Mathur, AOR Bharadwaj S., Advocates Raka Bejoy Phukan, Neha Tandon.
Respondents: Advocate General Amit Kumar, AOR Avijit Mani Tripathi, Advocates T.K. Nayak and Marbiang Khongwir