Himachal Pradesh High Court bans “two-finger test” on the rape survivors
Himachal Pradesh High Court issued an instruction to the state of Himachal Pradesh to strictly desist from undertaking a “two-finger test” (“ per-vaginum examination” ) on the rape survivors.
The division bench of Justice Tarlok Singh Chauhan and Justice Satyan Vaidya passed a ten-page order while hearing an appeal by a minor rape convict here on Thursday.
The division bench also slapped fine tune to Rs five lakhs on the medical professional belonging to Civil Hospital, Palampur of Kangra district who issued performance and confronted with columns No. 4 and 5 of the MLC advise two fingers test of a rape victim.
The court held that a medical professional had advised this test in violation of the guidelines or protocol adopted by the Government of Himachal Pradesh.
The court observed that the minor child victim in the instant case had been subjected to a “two-finger test”, which violated her privacy, physical and mental integrity, and dignity apart from creating fear and trauma for the child victim.
Court said that what is still worse is that the child victim had to suffer untold miseries, especially when confronted with columns 4 and 5 of the MLC which apart from being humiliating are even self-incriminating.
Court said that in the given facts and circumstances, those irresponsible medical professionals, who designed the proforma, and those, who medically examined the child victim, could not be allowed to go scot-free and the child victim essentially and legally needs to be compensated.
The court said that the Secretary (Health) of the state of Himachal Pradesh appeared before the court but the official was not in a position to justify the proforma as issued by the and stated that this was designed by some of the doctors at Civil Hospital, Palampur alone.
The court ordered the state to immediately withdraw such medical examination MLCs performed from civil hospital Palampur as such MLCs are not being issued anywhere in the State of Himachal Pradesh.
The court said that respondent doctors who advised and designed such performance should not be allowed to go free on account of retirement and inquiry should be conducted against them.
Court said that the “two-finger test” is violative of the 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.
The court said that it should be 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.
Court said that all the health professionals of the State of Himachal Pradesh are directed to strictly desist from undertaking a “two-finger test” known as “per-vaginum examination” on the rape survivors or else apart from other action(s) that may be taken against them, they shall be liable for being prosecuted and punished under the Contempt of Courts Act.
Court said that it is 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.
Now Court fixed the next date of hearing on February 27, 2024, to place the report of inquiry as well as the receipt acknowledging payment of Rs.5 lac to the child victim.
