The Himachal Pradesh High Court recently directed the State government to pay ₹5 lakh as compensation to a minor rape victim who was subjected to a two-finger test and asked “demeaning” questions by doctors during her medical examination [Sachin Kumar @ Sanju vs. State of H.P.].The division bench of Justices Tarlok Singh Chauhan and Satyen Vaidya also took strong objection to certain questions in the proforma prepared by the hospital including the question to the rape victim on her virginity.The Court directed health professionals in the State to strictly desist from conducting the two-finger test which has been banned by the Supreme Court.The High Court warned that apart from other actions that may be taken against such doctors who conduct the two-finger test on rape survivors, they shall also be liable for being prosecuted and punished under the Contempt of Courts Act.
“Since 'two-finger test' is violative of 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 lakh 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 ordered.The Court passed the directions while dealing with an appeal filed by the accused challenging their conviction for the rape of a minor girl.During the hearing, the Court noticed the medico-legal certificate (MLC) issued by the Civil Hospital Palampur and found the MLC’s contents to be “demeaning” and to a certain extent “even self-incriminating and self-inculpatory for the child victim."“The gross insensitivity shown by all those, who had designed the MLC and its columns, cannot go unnoticed,” the Court said.
In particular, the Court found the following questions in the proforma prepared by the hospital to be “hitting directly” on the privacy of the child victim:Coitus, if any prior to alleged assault (Date, Time, Condom used or not);Patient’s statement on whether or not she is a virgin.Declaring the proforma designed by the hospital to be bad in law, the Court also said it completely ignores Section 53A of the Indian Evidence Act which states that evidence of character or previous sexual experience are not relevant in certain cases. The Court further noted that proforma also violates the guidelines and protocols issued by the Ministry of Health and Family Welfare for health professionals for dealing with survivors of sexual violence.“From the perusal of the aforesaid guidelines, it is clear that 'two-finger test', which as per the medical term, is called 'per-vaginum examination' has been strictly prohibited under these guidelines and protocols. It is pertinent to mention here that these guidelines stand adopted by the Government of Himachal Pradesh and thus are applicable to the health professionals throughout the State of Himachal Pradesh," the Court said.The Court added that if the questions were not enough, the doctors issuing the MLC conducted the ‘two-finger test’ despite the fact that it has been held to be violative of the right to privacy, physical and mental integrity and dignity of the rape survivors by the Supreme Court.The Court opined that the doctors had violated the child victim’s privacy, physical and mental integrity and dignity, apart from creating fear and trauma to her.The State’s Health Secretary, who had been called to Court, could not justify the proforma issued by the Civil Hospital Palampur and submitted that it has been withdrawn with immediate effect.However, the Court said the “irresponsible medical professionals” who designed it and those doctors who medically examined the victim cannot be allowed to go scot-free.While directing the State to pay ₹5 lakh as compensation to the victim, the Court said it could recover the same from the medical professionals after holding an inquiry.
The inquiry shall be held against all those doctors who designed the proforma 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, ordered the Court.“Further, inquiry be held against all those Doctors, who medically examined the child victim and issued the MLC in question and thereafter responsibility be fixed and here again, the mere fact that the Doctor(s) has/have retired shall not come in the way to fix both liability as well as responsibility,” it added.The Court also observed that even the trial court judge and district attorney had not been sensitive enough in conducting the case.It listed the matter on February 27 for placing on record the report of inquiry and the receipt acknowledging the payment of compensation to the child victim.
Senior Advocate KS Banyal and advocate Uday Singh Banyal represented the appellant (convict).Senior Additional Advocate General IN Mehta and Additional Advocate General Navlesh Varma and Sharmila Patial with Deputy Advocate General JS Guleria represented the State.
TAGS: Himachal Pradesh High CourtCompensation Minor rape victim Two-finger test Demeaning questions
