The Supreme Court banned the two-finger test in 2013, but states like J&K still haven’t adopted the Centre’s new guidelines
It’s a cold February day and it’s a cold table. Sixteen-year-old Abda is asked to lie down on it. She must do as she’s told. There are people standing around her. One person rolls her clothes up to her knees, holds her feet, and opens her legs. She shuts her eyes tightly, hoping this will be last time she has to go through this.
One finger is steadily forced inside her vagina. It hurts, but she tries not to make a sound. The room is unsettlingly quiet. Just as the finger is slipped out and she hopes it’s over, it happens again. This time two fingers are pushed in, then one more, and finally four fingers are forced into Abda’s vagina.
A few days later, the person who did this to Abda sends a document to the police. The letterhead reads “Government District Hospital Kulgam”. The report states that Abda, who was examined by Dr Tahira, has “lost virginity”. It further states “Hymen was not intact. Inserted four fingers easily”.
What Abda was subjected to was the infamous two-finger test. “I didn’t know what was happening. I just wanted it to be over,” she said.
Late this January, Abda was recovered on her way from Jammu to the Kashmir Valley after her parents filed an FIR claiming their daughter had been missing for seven days. Abda then revealed to the media about how she was regularly taken to Jammu, drugged, and raped. Early this February, Abda was brought to the District Hospital in Kulgam by a Special Investigation Team. On April 21, based on their investigation, the SIT filed a chargesheet at the Chief Judicial Magistrate court in South Kashmir’s Kulgam district. One of the documents in the chargesheet was the medical report mentioned above.
SC bans two-finger test
The two-finger test is when a medical examiner inserts his/her fingers into a rape survivor’s vagina to examine the status of the hymen and laxity of the vagina.
In May 2013, women of India heaved a sigh of relief. The Supreme Court had made a statement that the two-finger test conducted on rape victims is no longer considered scientific. In fact, it urged the government to provide better medical procedures to confirm sexual assault, as the two-finger test violates the privacy of the victim.
“Medical procedures should not be carried out in a manner that constitutes cruel, inhuman or degrading treatment and health should be of paramount consideration while dealing with gender-based violence,” stated the court.
Nevertheless, five years later, Abda was lying on that table, stripped of her dignity, and made to undergo that “cruel, inhuman and degrading treatment”.
Why is the two-finger test considered unscientific?
The test was conducted to ascertain sexual history, that is to establish if the vagina has previously been penetrated or not. If one finger is inserted into the vagina with difficulty, the interpretation is that the victim is a virgin. If two fingers can easily be inserted into the vagina, then the finding suggests that the victim is habituated to sexual intercourse.
When Newslaundry spoke to Dr Jagadeesh Reddy, a doctor and professor of forensics, he pointed out multiple problems with the test.
According to Reddy, the size of the fingers inserted into the vagina isn’t consistent. “If the examiner is slightly built, he or she might be able to easily pass two fingers, as opposed to an examiner who might be more broadly built,” he said.
Second, it violates the rights of the individual because the law itself states that the victim’s virginity not being intact is not synonymous with sexual assault. “It is not required by the victim to be sexually inactive to prove sexual violence,” he said.
Moreover, it has been proven time and again that the idea of the hymen itself is a myth. The hymen can be broken simply from high physical activities like running, dancing, or horse riding. Most often, the hymen of women is broken at a young age and not from sexual activity. This “virginity test” proves nothing.
When Newslaundry reached out to Dr Tahira Akhtar, Abda’s medical examiner at the Government Hospital in Kulgam, she said: “The two-finger test does not mean anything.” Based on “examination and history”, Dr Tahira had reported that Abda was not a virgin. She ascertained this ‘history’ from Abda’s own admission of being sexually active. Dr Tahira said that she conducted the test purely because the investigation team had asked her to “establish if the hymen was torn or not”.
A member of the SIT, on condition of anonymity, said, “We never specially asked for the two-finger test to be conducted. We only asked to check if the victim was raped. The decision to do the test was the hospital’s call.” The officials were also unaware of the SC ban.
When asked if Dr Tahira knew about the test being banned she said, “Oh, I didn’t.” When asked why she decided to conduct the test despite knowing that the test “doesn’t mean anything”, she reiterated that she was only acting on the instructions of the investigation team.
Dr Fazil Ali, chief medical officer, Kulgam, also reiterated that the test had been conducted but only because of the instructions of the investigation team.
In response to this, Dr Reddy said that according to the law, the police may ask any question but it is the doctor’s responsibility to produce a medically-relevant answer. “We count on doctors for a scientific response. If something cannot be scientifically proven then the question should not be answered.”
The SIT had also asked the doctors to confirm Abda’s age. According to Dr Tahira, the age can only be verified through “dental/radio-logical opinion”, thus, making Abda’s examination incomplete.
This is how an unscientific virginity test was conducted on Abda. For reasons irrelevant to the case, the doctor claimed that she was not a virgin. The investigation team was only looking to establish rape without checking for the validity of the mechanism used to establish the act. So the chargesheet states that Section 376 (charges of rape) was added to the chargesheet after the report of the medical test was obtained.
The finger test was also conducted on the body of the eight-year-old Kathua girl who was brutally raped and murdered early this year. According to Dr Jagdeesh Reddy, as soon as a body loses life, the muscles relax. Subsequently, the muscles get rigid and then go into a secondary relaxation. “When something is irrelevant when you’re alive, it is irrelevant in death also. And after death you have further complication,” he said.
What does a ban mean?
A “ban” does not translate to an action being a punishable offence or illegal.
Dr Reddy said the ban means that the result of a two-finger test is inadmissible in court, that it can’t be counted as evidence. According to him, it’s the job of the prosecution to point out that the submission of a medical report that claims to have subjected the victim to a two-finger test is an action that should be held as contempt of court. “Unfortunately, most lawyers do not want to do this as it may go against their case,” he says. Nevertheless, he claims that it is the job of the judiciary to be vigilant. “The test goes against the guidelines of the Supreme Court. Being the custodian of law, the judge and magistrate should have taken that into cognizance”.
When Newslaundry reached out to Dr Saleem-Ur-Rehman, director, health services, Kashmir he asked to send Abda’s medical examination report. Since then he has remained unavailable for comment.
The 2014 guidelines
A year after the SC ban, the Ministry of Health and Family Welfare compiled a comprehensive set of guidelines for the medico-legal care for survivors of sexual violence to standardise a healthcare professional’s examination and treatment of sexual assault survivors.
The guidelines suggest a process that protects the dignity, and facilitates a non-threatening environment, for women and children to be medically examined for sexual violence.
Health being a state subject, it is up to the state government to insist that the guidelines be adopted. Dr Reddy said that 11 states across India and all union territories have now adopted this guideline. Jammu and Kashmir has not.
Dr Devinder Kumar Manyal, minister for health and medical education, claimed he needed time to respond on the issue of why the guidelines sent by the Centre have not yet been applied in Kashmir.
When Newslaundry reached out to Devinder Kumar Manyal, health minister and a doctor himself, he sought some time but later redirected us to the Dr Fazil Ali, the chief medical officer at Kulgam, who confirmed that the 2014 guidelines do not apply in the state.
Talking sexual violence in Kashmir
According to the National Crime Records Bureau (NCRB), in 2016 alone there have been 256 cases of rape that were reported. Twenty-one of these cases involved minors.
“Forget rape examination, a few years back we couldn’t even say words like ‘rape’ or ‘sex’ in Kashmir. In fact, women have told me that the police wouldn’t even file their FIRs when they complained,” said Nayeema Ahmad Mehjoor, the chairperson of State Commission for Women in Kashmir. “When there is a law and order issue, and in Kashmir there is a perpetual law and order issue, rape become less or not important.”
Nayeema Mehjoor said in the last three years, only five or six women have met her with cases of rape.
“This is not because it doesn’t happen here, it is simply because we do not want to talk about it. Men don’t want their women to speak of it because the woman is labelled ‘promiscuous’ and the family fears ostracisation,” she said. But she added that in the last year things, especially after the gangrape and murder of the Kathua girl, there has been a dramatic shift. “Women are speaking up and the police is taking sexual violence more seriously.”
Regarding the media’s coverage of sexual violence in Kashmir, a local journalist who wished to remain anonymous claimed that like everything else about Kashmir, “conflict and politics act as horse blinds for reporters. Everything here gets brushed under the carpet, including rape and rampant sexual harassment,” he said. According to him, even editors are to be held responsible. The term “rape” is never used in headlines and the story itself rarely makes it to front page, unless the perpetrators are alleged to be uniformed men. “There is the unspoken rule of sorts that one does not report on societal issues lest it draws attention away from the overarching cause of aazadi.”
Note: The story has been updated with comments from Dr Tahira Akhtar, Abda’s medical examiner at the Government Hospital in Kulgam.
This article was first published in Newslaundry