Rape Survivors need not undergo “two-finger test” and identity of the victim should not be revealed in proceedings or judgment: Jammu & Kashmir High Court

Identity of the rape survivors is not be disclosed in the proceedings and judgments. Further, all the health professionals are strictly directed to desist from practicing the “two finger test” or “pre-vaginum examination” on the rape survivors. The Jammu & Kashmir high court presided over by C.J. P. Mithal & J. Sanjay Dhar laid this ratio in the case of State of J&K Vs. Mohd. Imran Khan, [SLA No. 38/2018].

The brief facts of the case are that the Prosecution sought a leave to appeal against the judgment passed by the Principal judge of the Trial Court whereby the Respondent was acquitted of the charge for offence under Section 376 of IPC. The Prosecutor contended that the Prosecutrix was a minor and had been kidnapped and a FIR was filed by the maternal grandfather later it was found that the Respondent had kidnapped and raped her. Hence a charge sheet for rape was filed against the Respondent. The Trial Court acquitted the Respondent on the basis of technicalities of the statement of the prosecutrix and for several other flimsy reasons.  Hence, the leave to appeal was filed.

The High Court allowed the leave to appeal against the impugned judgment. The Division bench of the Court also observed that the victims name was repeatedly mentioned in the proceedings and the judgment. The Court with respect to this matter stated that, “Although, prohibition contained in Section 228A may not strictly apply to the judgment of a Court, yet the Courts must avoid disclosing the name(s) of prosecutrix in their orders and judgments, so as to avoid embarrassment and humiliation to a victim of rape. Rape is not merely a physical assault but it is destruction of the personality of the victim. Therefore, Courts have to act responsibly and with sensitivity while dealing with the cases of rape, particularly, while referring to the prosecutrix.” The court also relied on a few landmark judgments like the State of Punjab v. Gurmeet Singh, (1996) 2 SCC 384 & Bhupinder Sharma v. State of Himachal Pradesh (2003) 8 SCC 551, that state that “the bar imposed under Section 228A IPC did not in term apply to the printing or publication of judgments of the High Courts and the Supreme Court because of the explanation to the said provisions, yet keeping in view the social object of preventing the victims or ostracizing of victims, it would be appropriate that in judgments of all the Courts i.e. trial Courts, High Courts and the Supreme Court the name of the victim should not be indicated.”

The Court also took note of the fact that the “two finger test” had been used by the medical professionals in this case, which has been held as an unconstitutional practice by the Supreme Court as it violates the right of rape survivors to privacy, physical and mental integrity and dignity. The court further observed that, “The International Covenants on Economic, Social and Cultural Rights, 1966, United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985 provide that rape survivors are entitled to medical procedures conducted in a manner that respects their right to consent. As per these Covenants, State is under an obligation to make such services available to survivors of sexual violence and that proper measure should be taken to ensure their safety and there should be no arbitrary or unlawful interference with their privacy.”

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