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Unconstitutionality Of Virginity Test: Conflict With Section 53 Of C.R.P.C.

By Khagesh Meena and Manik | Views 13295

Unconstitutionality of Virginity Test: Conflict With Section 53 of C.r.P.c.
In India, due to old societal norms of women being pure the concept of virginity is still prevailing in the society, which has led to an un-scientific, inhuman, and unconstitutional practice called the virginity test. The virginity test is based on the laxity of the vagina. The test involves the examination of the vagina of the woman by inserting two fingers into the vagina to determine whether the hymen is broken and the laxity of the vagina. Due to the use of two finger the test is also known as the two-finger test.

Unconstitutionality of the virginity test
The virginity test found its application under the criminal legal framework, in determining penetration in cases relating to sexual assaults and rape. Later, due to the regressive and invasive nature of the test, the Supreme Court in the Lilu v. State of Haryana[1], case held that the two-finger test violates the right to privacy, physical and mental integrity and dignity. These medical procedures cannot be allowed as they are cruel, inhuman and degrading in the treatment.

For sexual offences, it is irrelevant to look upon whether a woman is "habituated to sexual intercourse" or "habitual to sexual intercourse". Women's sexual history is wholly immaterial. Further, the landmark decision of Gujrat HC in the case of the State of Gujarat v. Rameshchandra Rambhai Panchal[2] case held that the two-finger test is an archaic practice conducted on the rape victim and is violative of the right to privacy, physical and mental integrity and dignity. Thus, a virginity test or two-finger test must not be conducted as it is unconstitutional.

Conflict with Section 53:
Though virginity test is unconstitutional, it conflicts with Section 53 of CrPC. As, section 53 provides for a medical examination at the request of a police officer of the person, who has been arrested for committing an offence of such a nature that there are reasonable grounds for believing that an examination of such a person will afford evidence as to the commission of an offence. Similarly, Section 54 of CrPC also provides for the medical examination of the arrested person at the request of the arrested person.

Code of Criminal Procedure (Amendment) Act, 2005 introduced the "explanation" part which included several forms of medical examinations within the ambit of section 53 and 54. The amendment also left the scope for more forms of medical examinations to be included in the section by the inclusion of the phrase "Such Other Tests" in the explanation part. This raises a question that "Whether virginity test can be included within the ambit of "Such Other Tests" of section 53 and section 54?"

Rights Guaranteed Under Article 21 of a Person Arrested
Sections 53 and 54 operates on the premise that rights of an arrested person are restricted. But when a person is arrested, it is the right to movement of that person that is restricted, which is covered under personal liberty. However, the right to the dignity of an accused is not waived off, as the right to dignity right to dignity is an indispensable part of the right to life.[3]

"The right to dignity of an accused does not dry out with the judges' ink, rather, it subsists well beyond the prison gates and operates until his last breath"

The rights guaranteed under Article 21 of the constitution cannot be refused to convicts, under-trials, detenus or other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law.[4] And because there is no law which permits the virginity test. Therefore, applying a virginity test on the accused is violative of their right to live with human dignity.

RESTRICTION ON THE AMBIT OF "Such Other Tests"
The virginity test being the medical test cannot come within the ambit of "Such Other Tests". The Supreme Court in Selvi & ors. v. State of Karnataka[5], restricted the scope of the medical examination under section 53 and section 54 by observing that the scope of "Such Other Tests" is to be governed by the rule of "ejusdem generis".

According to this, "Such Other Tests" will only include those tests which are in the same genus as the other forms of medical examination that have been specified in the explanation.[6] All the forms of the medical examination that have been specified in the explanation mandate use of modern and scientific techniques, whereas the virginity test is an archaic, irrational and unscientific practice. Therefore, the virginity test is not covered under Section 53 and Section 54.

Similar observations were made by the Delhi high court judgment Sr. Sephy v. CBI & Ors.[7] case, where the court held that the virginity test does not come within the ambit of section 53.

Rationality Behind Virginity Test
Earlier, the virginity test was used as a determinative factor in cases relating to rape or sexual assault but the Lilu[8] case held the test unconstitutional. The courts in many judgements have declared the virginity test as invalid, as the virginity test is a misogynistic practice, [9] violative of the fundamental rights conferred by the constitution.

The test has no logical reasoning as the test is focussed on the size of the vaginal introitus, it is based on an incorrect patriarchal assumption that a sexually active woman cannot be raped or sexually assaulted. In reality, the size of the vaginal introitus is irrelevant for a case of sexual assault, as observed by "Report of the Committee on Amendments to Criminal Law, 2013."

The test considers the status of the hymen, which can be torn due to several other reasons like cycling, masturbation, etc. Therefore, an intact hymen cannot rule out sexual violence, and a torn hymen cannot prove previous sexual intercourse.

In 2018, UN Human Rights Office, World Health Organization and UN Women issued a joint statement, titled "Eliminating Virginity Testing: An Interagency Statement", which calls for banning the virginity test, as it is unscientific, medically unnecessary and unreliable. Therefore, now in the present time, one needs to do away with this misogynistic practice and make sure that women's integrity and dignity are respected.

Conclusion
The practice of the virginity test is a dehumanizing act that is an unlawful intrusion into the right to privacy and the sanctity of women. When this test is conducted it degrades and humiliates women leaving behind a traumatic experience affecting the dignity and integrity of women guaranteed under Article 21 of the constitution. Therefore, this practice affects the honour and dignity of women and intrudes into the sanctity of women and should be completely prohibited.