Himachal Pradesh HC Orders Inquiry Against Doctors For Conducting 'Two-Finger Test' On Minor Rape Survivor

The bench was of the opinion that for putting the minor victim through the ordeal and miseries, the medical professionals cannot be allowed to go scot-free and the child victim essentially and legally needs to be compensated. Accordingly directed the State to pay ₹ 5 Lakh to be paid to the victim.

A bench of Justice Tarlok Singh Chauhan and Justice Satyen Vaidya while noting the questions in the medico legal certificate (MLC) not only to be demeaning, but even self-incriminating, self inculpatory and hitting directly on the privacy of the child victim, observed, “If that was not enough, the Doctors issuing the MLC in question have even conducted the “two-finger test” despite the fact that this test has been held to be violative of right of rape survivors to privacy, physical and mental integrity and dignity”.

“Since “two-finger test” is violative of right of rape survivors to privacy, physical and mental integrity and dignity, therefore, in the given background, the respondents are directed to pay a sum of Rs.5 lacs, as compensation, to the child victim, for the trauma, embarrassment, humiliation and harassment having been caused to her at the hands of the Doctors in the Civil Hospital Palampur, which shall, at the first instance, be paid by the State and thereafter recovered from the erring medical professional(s), after holding an inquiry. The inquiry shall be held against all those Doctors, who designed the proforma and thereafter responsibility be fixed and the mere fact that some of these Doctors have since retired will not come in the way of the respondent-State in fastening the financial liability on them. Further, inquiry be held against all those Doctors, who medically examined the child victim and issued the MLC in question and thereafter responsibility be fixed and here again, the mere fact that the Doctor(s) has/have retired shall not come in the way to fix both liability as well as responsibility”.

“Before parting, we are constrained to observe that unfortunately even the learned Special Judge and for that matter, even the learned District Attorney have not been sensitive enough in conducting the case”, bench further noted in the order.

The bench also directed all the health professionals of the State to strictly desist from undertaking “two-finger test” known as “per-vaginum examination” on the rape survivors or else apart from other action, they shall be liable for being prosecuted and punished under the Contempt of Courts Act.

Senior Advocate K. S. Banyal appeared for the petitioner and Senior Additional AG I. N. Mehta, with Additional AG Navlesh Verma, Sharmila Patial, Addl. A.G. and Deputy AG J. S. Guleria appeared for the respondent-State.

In the present matter, the appellant was convicted under Sections 376, 354 of the Indian Penal Code and Sections 6 and 14(3) of the Protection of Children from Sexual Offences Act and Sections 66-E and 67-B of Information and Technology Act by the Special Judge.

It was during the hearing of the appeal, the bench noticed that the Civil Hospital Palampur had issued MLC, where in the columns, the bench came across questions in the columns No. 4 and 5 hitting directly on the privacy of the child victims. The questions were:

4. Whether pregnant: xxx xxx

a) date and time of last coitus: xxx xxx

b) coitus if any, prior to alleged assault: xxx xxx

Date:_____ Time:__________ Condom used or not:___________.

5. Patient’s statement, whether is a virgin: xxx xxx

Additionally, the bench also said that the proforma also violates guidelines and protocols that have been issued by the Ministry of Health and Family Welfare, Government of India for health professionals for dealing with survivors of sexual violence.

“For it is settled that ‘rape’ is not only a crime against an individual, but also a crime, which destroys the basic equilibrium of the social atmosphere. ‘Rape’ not only lowers the dignity of a woman, but also mars her reputation”, the order further read.

Cause Title: Sachin Kumar @ Sanju vs. State of H.P.