The Supreme Court (SC) has once again called for a ban on the two-finger test in rape cases nearly a decade after it first did so. It has said those who conduct it would be held guilty of misconduct. A Bench made up of Justice DY Chandrachud and Justice Hima Kohli made the observations in an SC order overturning the acquittal of a rape accused in the Telangana High Court October 31, 2022. Justice Chandrachud, who will soon take over as the Chief Justice of India November 9, called the practice ‘patriarchal’ and ‘sexist’. He also ordered the two-finger test to be removed from the syllabus of medical education. Justice Chandrachud observed the test not only re-traumatised and re-victimised women, but was actually “based on an incorrect assumption that a sexually active woman cannot be raped. Nothing can be further from the truth.”

“Evidence of a victim’s sexual history (is) not material to case. It is regrettable that it continues to be conducted even today,” Justice Chandrachud said.

The bench directed the Union Health Ministry to ensure the two finger test was not conducted on rape survivors. It also asked central and state governments to relay the information to all government and private hospitals.

This came on the heels of the December 2012 Nirbhaya gangrape case, after which the Union health ministry updated the proforma for medical examination of rape victims to remove the two-finger test.

The continued abuse of this examination has the potential to impact legal outcomes. The BMJ article argues that “defence lawyers use an ‘affirmative’ two- finger test to question a woman’s character and to refute allegations that sex was non-consensual. Such patriarchal assumptions have contributed to victims losing cases.” The practice was termed unconstitutional even then. But not much has changed. There has been a complete disconnect with the observations made by the court and the reality. Medical curriculum has to keep pace with changes in the society and law. The text books also need to be amended suitably. Many textbook of forensic medicine still continue to carry old, outdated information and the two- finger test is a glaring example. “Although the standards of the practice has changed, if it does not percolate into syllabus, how will the new doctors learn right things?” Datar said.