It Amounts To Interference With Woman’s Bodily & Psychological Integrity: Delhi HC Holds ‘Virginity Test’ On Accused As Unconstitutional

The Delhi High Court has declared the virginity test conducted on a female detainee, accused under investigation, or in custody, as unconstitutional.

“It is declared that the virginity test conducted on a female detainee, accused under investigation, or in custody, whether judicial or police, is unconstitutional and in violation of Article 21 of the Constitution which includes right to dignity”, Justice Swarana Kanta Sharma held.

The Court observed that conducting virginity test amounts to interference of the investigating agency with the bodily integrity and psychological integrity of a woman.

“The conducting of virginity test not only amounts to interference of the investigating agency with the bodily integrity but also psychological integrity of a woman which will have serious and profound effects on the mental health of a woman.”, the Court observed.

The Court noted that the Virginity test is neither modern nor scientific, rather archaic and irrational. It further added that Modern science and medical law disapproves the conduct of such tests on women.

The Court also held that such a test is in violation of fundamental right if conducted on a female, whether a victim or an accused.

“To hold that conducting virginity test on a woman who is victim of sexual assault and on a woman who may be an accused of an offence will be on different footing or that the earlier will be unconstitutional and the later constitutional, will be a perverse finding and against the intent of the Constitution of India and Article 21.”, the Court added.

The Court noted that there is no procedure, under any law for the time being, which provides for “virginity test” of a female accused.

The Court held that the virginity test is sexist and is in violation of human right to dignity even of a female accused if she is subjected to such a test while being in custody.

The Court made these observations while dealing with a plea by a woman who had challenged the conduct of ‘Virginity test’ on her by the CBI.

The petitioner was among those convicted by the Special CBI Court for the murder of another Nun in 1992.

The case of the petitioner is that she was forcefully subjected to undergo ‘Virginity Test’ by the Central Bureau of Investigation against her consent.

Advocate Romy Chacko appeared for the petitioner whereas Ripu Daman Bhardwaj, SPP appeared for CBI. CGSC Kirtiman Singh appeared for Union of India and Advocate S. Nanda Kumar appeared for NHRC.

It was stated that the said virginity test was conducted by the investigating agency under the pretext of an investigation to substantiate their case in relation to the death of deceased, who was found dead in a well.

On petitioner’s prayer seeking action against CBI, the Court noted that when this test was conducted upon the petitioner, there were no guidelines of the Apex Court or otherwise to have declared such tests to be unconstitutional or in violation of fundamental right of a female even qua the victims of sexual assault.

The Court further held that the question regarding grant of compensation or as to whether custodial torture had been caused to the petitioner has to be decided by National Human Rights Commission.

“…since the appeal against conviction filed by petitioner is pending before the Hon’ble High Court of Kerala, which is continuation of Trial, the National Human Rights Commission will as per mandate of law and its Regulations i.e. National Human Rights Commission (Procedure) Regulations, 1994, will consider afresh the representation filed by the petitioner regarding custodial torture or compensation once the criminal trial against the petitioner concludes.”, the Court added.

Before parting with the case, the Court directed that the necessary information regarding unconstitutionality of virginity test to be circulated to all investigating agencies/stakeholders through Secretary, Union Ministry of Home Affairs, Secretary, Union Ministry of Health and Family Welfare and Secretary, Department of Health and Family Welfare, Govt. of NCT of Delhi.

Cause Title- SR. Sephy v. CBI & Ors. (NEUTRAL CITATION NO. 2023/DHC/000848)

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