*Doctors asked to desist from conducting ‘two-finger test’
Excelsior Correspondent
JAMMU, Dec 24: Division Bench of High Court comprising Chief Justice (A) Rajesh Bindal and Justice Sanjay Dhar, while hearing an acquittal appeal in a rape case, has directed Trial Courts of Jammu, Kashmir & Ladakh not to disclose the name of the rape victims in the judgments. Moreover, all the health professionals of Union Territory of Jammu & Kashmir and Union Territory of Ladakh have been directed to strictly desist from undertaking “two finger test” known as “per-vaginum examination” on the rape survivors.
“It is necessary to comment on certain things, which we have noticed from the perusal of the impugned judgment. The Trial Judge has mentioned the name of the prosecutrix at several places in the judgment, which is impermissible in law and Section 228A of IPC prohibits disclosure of identity of the victim of certain offences, which includes offence under Section 376 IPC”, the DB said.
DB further observed, “although prohibition contained in Section 228A may not strictly apply to the judgment of a court yet the courts must avoid disclosing the name(s) of prosecutrix in their orders and judgments so as to avoid embarrassment and humiliation to a victim of rape”, adding “rape is not merely a physical assault but it is destruction of the personality of the victim”.
“Therefore, courts have to act responsibly and with sensitivity while dealing with the cases of rape, particularly, while referring to the prosecutirx and this issue has been a matter of discussion before the Supreme Court and various High Courts of the country in a number of cases”, the DB said, adding “from the judgments of the Supreme Court, it is clear that all courts are bound to avoid disclosure of name of rape victim(s) in the court proceedings as well as in their judgments. This dictum of law, it seems, has been ignored by the Trial Court in the instant case”.
“We, therefore, feel a need to reiterate and remind the Trial Courts of the Union Territories of Jammu & Kashmir, and Ladakh to follow the dictum in letter and spirit while dealing with cases of rape and crime against women”, the DB said.
“Another issue that has come to our notice from the reading of the Trial Court record and the impugned judgment is that the prosecutrix in this case has been subjected to “two finger test”. The International Covenants on Economic, Social and Cultural Rights, 1966, United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985 provide that rape survivors are entitled to medical procedures conducted in a manner that respects their right to consent”, the DB said, adding “as per these Covenants, State is under an obligation to make such services available to survivors of sexual violence and that proper measure should be taken to ensure their safety and there should be no arbitrary or unlawful interference with their privacy”.
“It is clear that “two finger test”, which, as per the medical term is called per-vaginum examination, has been strictly prohibited under the guidelines and protocols issued by the Ministry of Health and Family Welfare. These guidelines stand adopted by the Government of Union Territory of J&K and are applicable to the health professionals of the Union Territory with full force”, the DB said, adding “inspite of all this, in the instant case, it appears that the prosecutrix, who was minor at the relevant time, has been subjected to two finger test, which must have violated her privacy, physical and mental integrity and dignity”.
DB further said, “it is the need of the hour to implement the ban on “two finger test” on rape survivors with full force and in this regard a direction is required to be extended to all the health professionals of Union Territories of Jammu and Kashmir and Ladakh so that the judgment of the Supreme Court and guidelines and protocols issued by the Ministry of Health and Family Welfare are taken seriously”.
With these observations, Division Bench directed all the courts in the Union Territories of Jammu & Kashmir and Ladakh to avoid disclosing identity of rape survivors in their proceedings and judgments. The DB also directed all the health professionals of Union Territory of Jammu & Kashmir and Union Territory of Ladakh to strictly desist from undertaking “two finger test” known as “per-vaginum examination” on the rape survivors.
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