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"The virginity test conducted on any accused during the investigation is sexist and unconstitutional and against the right to life with dignity" – Delhi High Court recently held
It is not possible to tell a “virgin” hymen from a “non-virgin hymen - World Health Organization
A virginity test is a way to find out if a girl or woman is a virgin, which means that she has never had sexual relations with a man or another woman. The Kanjarbhat people in India often do a virginity test. It is just a religious, social, and cultural idea that comes from the idea that women's sexuality is harmful. Even today, in many societies, women are seen as the property of their fathers and husbands, and their bodies are just seen as "pure" objects of male power. This has led to unfair treatment of women and violence against them. Harmful practices like virginity tests continue, which is against her basic human rights.
Virginity testing also called the "two-finger test," is a physical exam of a woman's vagina that is usually done by a doctor to find out how loose her vaginal muscles are and if her hymen can be stretched out or not. In this test, the doctor puts two fingers into the woman's vagina, and the ease with which the fingers go in is thought to be a good indicator of whether she has been sexually active or not.
The Maharashtra University of Health Sciences (MUHS) has decided that second-year medical students will no longer learn about "signs of virginity" in their Forensic Medicine and Toxicology class. This means that in the future, medical students won't have to learn about the controversial "virginity test" or "two-finger test." After a petition that said "signs of virginity" had no scientific basis and didn't help with sexual assault investigations, an MUHS curriculum panel unanimously agreed with the decision.
In some societies, the value of a woman's virginity goes back a long way. There is no scientific or clinical basis for "testing for virginity." No test can show that a girl or woman has had sex, and the way a girl or woman's hymen looks can't show if they've had sex or if they're sexually active. No one test can tell if a woman is a "virgin" or not, but "virginity testing" still happens. Major groups think that virginity testing is a huge violation of human rights. A woman who "fails" the test is seen as bringing shame to her family, and there have been cases of brides being locked up in their parent's house as punishment. Not only do these exams violate the human rights of women and girls, but in cases of rape, they can cause more pain and feel like the original act of sexual violence, which can lead to re-experiencing, re-traumatization, and being victimized again. This practice has bad short-term and long-term physical, mental, and social effects on a lot of women.
The virginity test not only violates article 21 but also articles 14 and 15 as well. Before the Maneka Gandhi case, Article 21 only protected the right to life and personal freedom of citizens from arbitrary actions by the executive but not from the actions of the legislature. But post Maneka Gandhi's decision, Article 21 now protects a citizen's right to life and personal freedom not only from actions by the executive but also from actions by the legislature. In different cases, courts have said that "life" doesn't just mean "food and water," but also "dignity, freedom, privacy, etc." You need your own space to live a meaningful life.
With the Criminal Law amendment of 2013, the word "rape" now means a lot more. It now includes a lot of things that hurt a woman's body. So, the two-finger test would also be rape, unless it falls under exception 1 to Section 375 IPC, which says, "A medical procedure or intervention shall not be rape, but In The State of Jharkhand vs. Shailendra Kumar Rai 2022, a bench of Justices DY Chandrachud and Hima Kohli heard a criminal appeal and said that the invasive and traumatic practice should be taken out of medical study materials and that anyone who is found to have done such a test should be punished severely and the act should be seen as professional misconduct.
In the important case, Lilu @ Rajesh and Anr v. State of Haryana (2013), the Supreme Court said that the two-finger test goes against the Constitution. It goes against privacy and also against the physical and mental integrity, and dignity of people who have been raped. Even if this test is positive, the presumption of consent cannot be made automatically, even if the report is positive.
In Surjit Singh Thind v. Kanwaljit Kaur, the husband wanted to show his wife's virginity test because she wanted a divorce. After all, he couldn't have children. The court denied the husband's request because Article 21 of the Indian Constitution says that asking a woman to take a virginity test violates her right to privacy and her right to live with dignity.
In Sadaf Aziz v. Federation of Pakistan, WP No. 13537 of 2020, the judge said, "Virginity testing is very invasive and has no scientific or medical basis, but it's done in the name of medical protocols in cases of sexual violence." Doing that is embarrassing. Even if it turns out that the victim wasn't a virgin, that doesn't mean she wasn't raped or sexually abused. It puts the person who did the wrong thing on trial instead of the victim, and the focus shifts to whether or not she is a virgin. In this case, it doesn't matter at all how sexual the victim is. Even the most promiscuous victim doesn't deserve to be raped, and a virginity test shouldn't be used to figure out if an act of sexual violence happened or not. It hurts a woman's sense of her worth. The conclusions about a woman's sexual history and personality that can be drawn from these tests are an attack on her dignity and hurt her social and cultural standing.
In the case of Sr. Sephy v. Union of India on January 1, 2009, the Delhi High Court said on February 7, 2023, that giving a female detainee, accused person under investigation, or person in police or judicial custody a virginity test is unconstitutional and goes against Article 21 of the Constitution, which includes the right to dignity. The Court also said that even when a person is in jail, some basic rights can't be taken away, violated and the right to dignity under article 21 is one of them.
Hence, Indian jurisprudence dictates that in the name of custom and tradition, putting someone through a virginity test is a direct attack on their self-esteem. The Indian constitution gives every citizen a "right to life," which means they have the right to live with respect. This right means that the right to life is not just the right to live like an animal, but also the right to live with "dignity" for every person.
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