Earlier this week, the Delhi High Court ruled that conducting a "virginity test" on a female accused is unconstitutional, sexist and in violation of her right to dignity, calling it a form of inhuman treatment. The court also observed that there is no legal procedure that provides for a "virginity test". "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 the right to dignity," Justice Swarana Kanta Sharma said.
The order was passed by Justice Sharma on a plea moved by Sister Sephy, who sought to declare the conduct of a "virginity test" on her as unconstitutional, in connection with a criminal case over Sister Abhaya's death in Kerala in 1992. "This court, therefore, holds that this test is sexist and in violation of the human right to dignity, even if a female accused is subjected to such a test while in custody," the judge added.
The petitioner had alleged before the high court that she was forcibly subjected to a "virginity test" in 2008 by the Central Bureau of Investigation (CBI) under the pretext of the agency's investigation to substantiate its case, and the results were leaked.
The court asserted that conducting the "two-finger test" or "virginity test" on female sexual assault victims has already been held by the Supreme Court to be violative of their right to dignity, integrity and privacy, and there "cannot be two sets of views" on the issue. The court emphasised that the concept of "custodial dignity" of a female includes her right to live with dignity, even while in police custody, and conducting a virginity test on her not only amounts to an investigating agency's interference with her bodily integrity, but also with her psychological integrity.
"Strangely, though, the word 'virginity' may not have a definite scientific and medical definition --it has become a mark of purity of a woman. The intrusive testing procedure, as has been held in several judgments of the Hon'ble apex court, does not have a medical standing," the court observed.
"It will be difficult for this court to hold, being guided by the constitutional principles of fundamental rights, that a person in custody of authorities surrenders the right to bodily integrity and submits to bodily intrusion for the prosecution to find evidence through his body.
"The feeling of being demeaned by such treatment in custody by bodily invasion through conducting a virginity test also brings forth the undesirable and abhorrent notion of differentiation on the basis of gender and stereotypes," it said.
The petitioner's plea was opposed by the CBI, which argued that it was well within its right to get her medical examination conducted and the test was necessary for the investigation of the murder case.
The court said that while it was not examining whether the test was necessary for the investigation, conducting it on the accused, on the pretext of unearthing the truth, amounted to an infringement of her right as enshrined in Article 21. "Further, without an iota of doubt,” the court added,“the same rests on gender bias and society's view and obsession with the false concept of virginity being equated with the purity of a woman. Needless to say, it also amounts to controlling women's body, their sexual behaviour and the view that a woman with the hymen is pure and innocent," it added.
At the same time, the judge clarified that the right to dignity in custody does not refer to the ordinary stresses and anxieties that a person may feel as a result of being in custody and under interrogation. It also said the issue of compensation to the petitioner shall be considered by the National Human Rights Commission (NHRC) in accordance with the law in this regard, and that legal remedies for defamation due to the CBI’s alleged leak of the test report to the media are available to her.
As far as the petitioner's plea for action against the CBI was concerned, the court observed that when the test was conducted, there was no declaration on it being unconstitutional, howsoever despicable or deplorable the practice might have been.