The Delhi High Court, in a significant decision has held that conducting virginity test on a female detainee or accused under investigation is unconstitutional and in violation of her right to dignity enshrined under Article 21 of the Constitution of India.
The single-judge bench of Justice Swarana Kanta Sharma observed that there cannot be two sets of views regarding the test of virginity being in violation of fundamental right of a victim of sexual assault and a woman under investigation.
It is not the issue of a person being a victim or an accused but the vital issue is such a test being in violation of fundamental right if conducted on a female, whether a victim or an accused, the Court remarked.
"To hold that conducting virginity test on a woman who is victim of sexual assault and on a woman who may be an accused of an offence will be on different footing or that the earlier will be unconstitutional and the later constitutional, will be a perverse finding and against the intent of the Constitution of India and Article 21."'
The Court reiterated that there is no procedure, under any law for the time being, which provides for “virginity test” of a female accused.
Virginity testing is a form of inhuman treatment and the same violates the principle of human dignity. The test, being violative of right to dignity of an individual, cannot be resorted to by the State and the same shall be in teeth of the scheme of Indian Constitution and the right to life enshrined under Article 21.
The observation caem in petition moved by Sister Sephy, convicted in 1992 Sister Abhaya murder case, challenging the virginity test conducted on her by CBI as unconstitutional.
The Court expressed shock that CBI used virginity test to determine
the truth of the accusation of murder against the petitioner."Undoubtedly, the test in itself is extremely traumatic for a victim of sexual assault as well as upon any other women in custody and is bound to have devastating effect on the psychological as well as physical health of the person."
Virginity Test is 'Sexist'
The Court commented that in a strange way, “virginity” which do not have a definite scientific and medical definition, has become a mark of purity of a woman. It criticised that the test is still get conducted despite Apex Court's view on it having 'no medical standing'.
"The intrusive testing procedure, as been held in several judgments of the Hon’ble Apex Court, does not have a medical standing. Despite being inaccurate and their being definite studies that in some women hymen may not tear during vaginal intercourse, while in others they may tear even without vaginal sexual intercourse due to sports and other activities and some women may not even have one, such test has been conducted."
Without an iota of doubt, the same rests on gender bias and society’s view and obsession with the false concept of virginity being equated with purity of a woman, the Court stressed.
Needless to say, it also amounts to controlling women’s body, their sexual behavior and the view that a woman with the hymen is pure and innocent, it added citing State of Jharkhand Vs. Shailendra Kumar Rai @ Pandav Rai 2022 Latest Caselaw 858 SC wherein the Court has gone to the extent of holding that in case such tests are conducted on victims of sexual assault, it will amount to misconduct and thus, has tried to do away with this misogynistic practice.
"This Court, therefore, holds that this test is sexist and is in violation of human right to dignity even of a female accused if she is subjected to such a test while being in custody. The long term and short term negative effects of such a test have been reported in many reports."
The Court said that it will dfficult for it to hold being guided by the Constitutional principles of fundamental rights that a person in custody of the authorities surrenders right to bodily integrity and submits to bodily intrusion for the prosecution to find evidence through its 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 abhorrable notion of differentiation on the basis of gender and stereotypes."
Custodial Dignity Concept
The Court stated that concept of custodial dignity i.e. ensuring dignity of an individual while in custody, whether police or judicial, has been established by the Supreme Court.
It cited Sunil Batra Vs. Delhi Administration [1979], 1979 Latest Caselaw 269 SC which dealt with the torture of persons while in judicial custody.
"The Hon’ble Apex Court has also held in several judgments regarding violence in police custody. The present case draws the attention of the Court to take note of the important issue of dignity of a female in police custody. This Court holds that the concept of custodial dignity of a female will include her right to live with dignity even while in police custody," the Court observed.
Conducting a virginity test on the pretext of reaching truth regarding allegations against her will amount to infringement and violation of her right enshrined in Article 21 and explained in the judgment Shri D.K. Basu,Ashok K. Johri Vs. State of West Bengal, 1996 Latest Caselaw 1076 SC
"The conducting of virginity test not only amounts to interference of the investigating agency with the bodily integrity but also psychological integrity of a woman which will have serious and profound effects on the mental health of a woman. Some fundamental rights cannot be suspended or infringed or abridged even when a person is in custody and right to dignity is one such fundamental right which falls within the ambit of Article 21."
The Court clarified that 'right of dignity' in custody doesn't refer to the ordinary stresses and anxieties that a person may feel as a result of being in custody and under interrogation but the right for constitutional protection even while being in custody i.e. right to dignity.
"However, this should not mean to be taken to be a shield for the detainee from legitimate interrogation by police as per procedure established by law," it added.
CASE TITLE: SR.SEPHY vs CBI & ORS.
CASE DETAILS: W.P.(CRL) 1729/2009
CORAM: Justice Swarana Kanta Sharma
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(With input from news agency language)
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