IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 14.12.2022
Pronounced on: 07.02.2023
SR.SEPHY ..... Petitioner
CBI & ORS. ..... Respondents
HON'BLE MS. JUSTICE SWARANA KANTA SHARMA
SWARANA KANTA SHARMA, J.
1. This Court vide this judgment examines the following grave question of law:
"Whether virginity test conducted on a female in police custody during investigation is in violation of her fundamental right under Article 21 of the Constitution of India"
2. The petitioner before this Court, by way of present petition, has sought the following prayers:
"a) issue a declaration that the conduct of 'Virginity test' on the Petitioner by the Respondent-CBI is unconstitutional and against the tenets of Fundamental Rights.
b) Punish the errant officials of the CBI who have subjected the petitioner to undergo Virginity test' against her own free will and for leaking the conduct and result of the test to the media.
c) Direct the respondents to pay exemplary compensation to the petitioner for the mental agony/torture/ humiliation undergone by the petitioner for having subjected her to undergo Virginity test'.
d) Quash the order dated 6/8.5.2009 issued by the fourth respondent."
e) Pass such other orders of further orders, which this Hon'ble Court may deem fit and proper in the facts and circumstances of the Petition..."
A. FACTUAL BACKDROP
3. An inmate of a Hostel in Kottayam, Kerala was found dead in the well on 27.03.1992 and the local police had registered the crime No. 187/92 as 'unnatural death' on the basis of the statement given by 'X'. Though the Central Bureau of Investigation had entertained reasonable doubt as to whether death of deceased was suicide or homicide as evident from the final report submitted before the Court on 29.11.1996, the Kochi unit of the very same investigating agency took a different stand in concluding that the death was homicide. The investigating agency arrayed the petitioner as the third accused with two other co- accused persons.
4. The petitioner was arrested on 19.11.2008 and was produced before the Court of Chief Judicial Magistrate, Ernakulam which remanded the petitioner to custody of Central Bureau of Investigation for further investigation.
5. On 25.11.2008 by afternoon, the petitioner was taken to Alapuzha Medical College without disclosing the destination or the purpose where two lady doctors from the Forensic Science Department and one Gynecologist of the Govt. Medical College were present. The petitioner was taken to a room and was asked to sign a document and upon her enquiring about the matter, she was told that it was the consent letter for a test. It is the case of petitioner that her consent was obtained forcefully by officers of Central Bureau of Investigation and the doctors therein under duress and coercion by subjecting her to severe mental torture. Thereafter petitioner was subjected to 'Virginity test' and 'swab test' and about one hour thereafter she was taken back to the guest house.
6. It was later revealed that to the utter dismay of the Central Bureau of Investigation, the tests conducted by the doctors proved that the hymen of the petitioner was intact. As the result of the virginity test conducted on the petitioner proved counter-productive, officials of Central Bureau of Investigation with a view to save their face, fabricated a new story to the effect that the Petitioner has undergone surgery for suturing of hymen or "hymenoplasty".
7. On 28.11.2008 and the days that followed, the print and electronic media released the news of the virginity test conducted on the petitioner and the story of Central Bureau of Investigation of petitioner having undergone surgery for suturing of hymen. It is petitioner's case that the above reports were made public by the Central Bureau of Investigation even before the result of the test was submitted before the Court of Chief Judicial Magistrate on 02.12.2008.
8. As per petitioner, the Central Bureau of Investigation was carrying on a malicious campaign against her. Feeling extremely embarrassed and shocked by the conduct of the officials of Central Bureau of Investigation, the petitioner on 11.02.2009 preferred a representation before the Secretary to the Government of India, Public Grievances Department and the Director, Central Bureau of Investigation, stating the true facts and sought for their intervention in the matter and to redress the grievances of the petitioner. The above representation did not evoke any response.
9. Therefore, the petitioner approached the National Human Rights Commission seeking necessary intervention in the matter, and filed a petition/representation dated 17.03.2009. However, the National Human Rights Commission issued a communication to the counsel for the petitioner dated 06.05.2009 expressing that Commission was not inclined to proceed with the complaint in accordance with Regulation 9 of National Human Rights Commission (Procedure) Regulations, 1994 as amended. The National Human Rights Commission also granted liberty to the complainant to bring the allegations of violation of human rights to the notice of the Court.
10. The Central Bureau of Investigation filed the charge sheet before the Chief Judicial Magistrate on 24.07.2009 admitting the virginity test conducted on the petitioner and its result. However, in a bid to cover up their failure to prove that petitioner is not a virgin, it was alleged at para 53 of the charge sheet that the petitioner's hymen was subjected to hymenoplasty to conceal the evidence of rupture of hymen due to frequent sexual intercourse.
11. The case of petitioner is that she was forcefully subjected to undergo 'Virginity Test' by the Central Bureau of Investigation on 25.11.2008 against her consent. The said virginity test was conducted by the investigating agency under the pretext of an investigation to substantiate their case in relation to the death of deceased, who was found dead in a well on 27.03.1992. The result of the said test was allegedly leaked to the media by the Central Bureau of Investigation and it is the case of petitioner that the conduct of Central Bureau of Investigation in subjecting the petitioner to virginity test forcefully against her free will and selective leakage of the test by the investigating agency to the electronic and print media even before submitting the result before the concerned Court amounts to violation of petitioner's fundamental rights.
B. MAINTAINABILITY OF PETITION
i. Preliminary Objections of Respondents
12. Mr. Ripu Daman Bhardwaj, learned Special Public Prosecutor for Central Bureau of Investigation states that since the appeal of the petitioner against her conviction in the present case is pending before the High Court of Kerala, the trial in the present case is still undergoing as an appeal against conviction is considered as continuation of trial court proceedings. Reliance in this regard is placed upon the decision of Apex Court in Akhtari Bi v. State of M.P. (2001) 4 SCC 355, wherein it has been held as under:
"5. ...Appeal being a statutory right, the trial court's verdict does not attain finality during pendency of the appeal and for that purpose his trial is deemed to be continuing despite conviction..."
13. It is stated that since the trial is pending before the High Court of Kerala, this Court has no jurisdiction to entertain the present petition and grant any relief as the same would amount to entering into the jurisdiction of the High Court of Kerala. It is further argued that any finding of this Court would invariably have an impact on the pending trial of the petitioner
14. Mr. Kirtiman Singh, learned counsel for Union of India, echoing the submissions made on behalf of Central Bureau of Investigation, states that since trial of present case is pending before the High Court of Kerala, this petition deserves outright rejection. It is also stated that petitioner has all the rights to raise the present issue in her appeal before the concerned High Court. It is stated that petitioner cannot be allowed to raise the same issue before two different High Courts and she must choose one forum. It is also stated that instant petition is not a Public Interest Litigation, and this Court cannot decide the issue of constitutional validity of virginity test, de hors the facts of the case. It is further stated that petitioner is bound by the facts that govern her and a declaration in vacuum is not otherwise permissible in law, and it is settled principle of law that Constitutional Courts should not answer hypothetical academic questions. In this regard, he places reliance upon the decision of Apex Court in Sanjeev Coke Manufacturing Co. v. Bharat Coking Coal Limited (1983) 1 SCC 147 and Kusum Ingots & Alloys Ltd. v. Union of India (2004) 6 SCC 254.
15. Learned counsel for Union of India further states that the submission of learned counsel for petitioner that he is challenging the virginity test independent of the petitioner's trial in High Court of Kerala is untenable. It is stated that the present petition is totally based on the cause of action that accrued to the petitioner and it will be wrong to say that present petition has nothing to do with the trial before High Court of Kerala. Learned counsel for Union of India points out that all the facts mentioned in the present petition are of trial in Kerala, for which an appeal is pending before the High Court of Kerala. It is further pointed out that even the prayer in the present petition asks for declaration of virginity test conducted on petitioner as unconstitutional.
16. Learned counsel for Union of India further submits that it is not the case of petitioner that High Court of Kerala cannot decide the issue raised before this Court or that any declaration in favour of petitioner cannot impact the trial proceedings pending before the High Court of Kerala. Learned counsel for UOI relies upon the decision of this Court in DCM Shriram Industries Ltd. v. HB Stockholdings Ltd. (2014) SCC OnLine Del 1572 to contend that parallel proceedings pursuing identical reliefs, based on the same cause of action, must not be allowed. In view of this decision, it is also averred that applying the doctrine of election presupposes, when there is choice of remedies which are inconsistent in character, the party has to elect one to the exclusion of the other. In present context, it is argued by learned counsel for Union of India that argument of learned counsel for petitioner that outcome of this Court qua unconstitutionality of conduct of virginity test will have no impact on trial before High Court of Kerala is misconceived.
17. It is argued that plea seeking compensation is also erroneous, in as much as if the petitioner seeks a declaration of unconstitutionality of virginity test conducted upon an accused in general, there would be no question of compensation in the given facts of the case. It is argued that if the plea qua compensation as well as declaration of virginity test conducted upon petitioner as unconstitutional is sought in reference to petitioner herein, this Court would be required to appreciate the facts of the case, which are under consideration by the High Court of Kerala.
ii. Contentions on behalf of Petitioner
18. Mr. Romy Chacko, learned counsel for petitioner argues that the present petition is maintainable under both clause (1) and (2) of Article 226, which read as under:.
226. Power of High Courts to issue certain writs (1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose (2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
19. Learned counsel for petitioner states that instant writ petition is maintainable under Article 226(1) of Constitution because the relief prayed by the petitioner in prayer clause (b), (c) and (d) includes, inter alia, issuing directions to and quashing orders passed by the respondents i.e. Union of India, Central Bureau of Investigation and National Human Rights Commission, all of which are located within the jurisdiction of this Court. It is, thus, stated that on the ground of territorial jurisdiction, the petition would be maintainable before this Court. It is argued that cause of action is irrelevant for the purposes of Clause (1) of Article 226, and that legislative history of Article 226 shows that initially clause (2) of Article 226 did not exist and so the High Court could issue writ only against an authority which is located within its territories. Reliance in this regard is placed upon the decisions of Hon'ble Apex Court in Election Commission of India v. Saga Venkata Subba Rao AIR 1953 SC 210and Lt. Col. Khajoor Singh v. Union of India AIR 1961 SC 532.
20. Learned counsel for petitioner submits that Article 226 was amended by the Constitution 15th Amendment Act, whereby clause (1A) was inserted into Article 226. Later by the constitution 42nd Amendment Act, clause (1A) was renumbered as clause (2). The effect of the amendment was that accrual of cause of action was made an additional ground to confer jurisdiction on a High Court under Article 226 of the Constitution. The jurisdiction under Article 226 (1) and Article 226 (2) is distinct and separate. Article 226 (2) confers an additional power on every High Court to issue writs throughout its territory within which the cause of action wholly or in part arises.
21. Mr. Chacko further states that even the petition would be maintainable under Article 226(2) of Constitution as the cause of action for filing the present petition arose within the jurisdiction of this Court.
It is stated that the reason for approaching this Court was lapse on the part of respondents herein, who are situated within the territorial jurisdiction of this Court, to take appropriate action and provide relief to the petitioner including compensation for violating her fundamental rights. It is also submitted by Mr. Chacko that since the representations filed before these authorities i.e. respondents were in connection with the conduct of an unconstitutional test upon the petitioner, the declaration qua same is also sought before this Court, which is essential to decide the other prayers.
22. Controverting the submissions of learned counsels for respondents, it is argued by learned counsel for petitioner that the issue before this Court, i.e. unconstitutionality of the virginity test conducted on the petitioner, is not an issue for consideration, directly or substantially, before any other court, and the matter pending before the High Court of Kerala is the appeal filed by the petitioner against conviction under Section 302 IPC. He also states that it is not his concern as to what is the outcome of the said case that is the criminal trial faced by the accused wherein she has already been convicted. He also states that his arguments is that there was no necessity to conduct this test in connection with the criminal case and is asking for disciplinary action and compensation to be paid to the victim as well as constitutional validity of this test being conducted on a female under interrogation, which is not an issue before the Trial Court in the concerned State.
23. He further contends that these two prayers are neither directly or substantially in issue before the criminal Court and rather they are not even remotely in issue before the criminal court where trial is taking place. It is also the contention of the learned counsel that the respondents in this petition abdicated their responsibility to safeguard the fundamental right of the petitioner and the representations which were given by her to National Human Rights Commission at its Headquarter in Delhi had passed illegal order, impugned before this Court, which are liable to be quashed and compensation be paid to the petitioner. He states that even this issue is not pending before the concerned criminal court in another State. It is stated that there is no rule similar to "res sub-judice", as existing under Civil law, to bar such proceedings. However, in this regard, reliance has been placed upon the decision of National Institute of Mental Health & Neuro Sciences v. C. Parameshwara (2005) 2 SCC 256 to contend that even under civil law, the rules mandate that matter under consideration must be directly and substantially in issue before the court in contrast to incidentally or collaterally in issue.
24. Learned counsel for petitioner also submits that this Court, being a Constitutional Court, in a petition under Article 226 of Constitution, has ample powers to deal with the issues of fundamental rights of the citizens. It is stated that in the present case, the petitioner who was an accused in a criminal case was unnecessarily subjected to undergo the unconstitutional virginity test without her consent. He also argued that the victim though an accused in the criminal case cannot be denied the constitutional remedy on the ground that the trial or an appeal is pending before the High Court.
iii. Findings of this Court
25. The petitioner has approached this Court by way of instant writ petition under Article 226 and 227 of Constitution of India. The arguments on the maintainability of this petition were heard in extenso.
26. Undoubtedly, as per mandate of Article 226 (1) of the Constitution, this Court has the jurisdiction to entertain the present petition since the relief sought as per prayer clause (b), (c) and (d) is against the respondents herein i.e. Union of India, Central Bureau of Investigation and National Human Rights Commission, whose headquarters are situated within the jurisdiction of this Court. Considering the arguments of learned counsel for petitioner, it is noted that in Election Commission of India v. Saga Venkata Subba Rao (supra), the Hon'ble Supreme Court had reversed the decision of the High Court and had held that the Madras High Court did not have the power to issue a writ against Election Commission of India since the said Commission was located in New Delhi and not within the territories of High Court of Madras. Furthermore, the majority in decision rendered by a seven-judge bench of Apex Court in Lt. Col. Khajoor Singh v. Union of India (supra) approved the view taken by the Court earlier in Saka Venkata Subba Rao (supra) and held that the High Court of Jammu & Kasmir was right in not entertaining the writ petition filed by the Petitioner on the ground that it had no territorial jurisdiction.
27. Secondly, even the cause of action for filing present petition i.e. inaction of respondents to provide relief to the petitioner and rejection of the representation of petitioner also arose within the jurisdiction of this Court. It has been expressly held by the Apex Court in Kusum Ingots & Alloys Ltd. v. Union of India (supra) as under:
"10. Keeping in view the expressions used is Clause (2) of Article 226 of the Constitution of India, indisputably even if a small fraction of cause of action accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter."
28. However to decide the aforesaid three prayers of the petitioner, it is essential to first deal with prayer (a) as all the other prayers are interlinked with prayer (a). The first prayer before this Court relates to the unconstitutionality of virginity test conducted upon an accused who is in custody. Essentially, this is an issue which deals with the fundamental rights of a person, and without any iota of doubt, the Writ Courts have the mandate to deal with and decide such issues. Furthermore, this is not the case, or an issue which is directly or substantially before the matter pending before High Court of Kerala, which is an appeal against conviction under Section 302 IPC. Issue in question before the Court at Kerala trying the criminal offence is that as to whether the petitioner in this case who is an accused in a case pending at Kerala had committed an offence of murder or not. It is not the issue before this Court rather no prayer has been made before this Court through this Writ Petition which refers to any right or contention of the petitioner as an accused. Rather by this Writ Petition, the petitioner though an accused of a murder case, during investigation of which the virginity test was conducted seeks a declaration that such test was unconstitutional which had infringed her right to personal equity, dignity and privacy and could not have been conducted. Even this question is not an issue before the concerned criminal trial court. In case the petitioner would have sought any relief regarding the investigation or striking down the outcome of any test conducted during investigation which could have bearing on the outcome or appreciation of evidence of that case, this Court would certainly not have entertained a prayer in that regard. In view thereof, this Court is unable to accept the contentions of learned counsels for respondents that the relief sought by the petitioner herein is also pending before the High Court of Kerala.
29. Under Article 227 of the Constitution of India, since the representations regarding the unconstitutionality of this test conducted on the petitioner were given at Delhi at the Central Bureau of Investigation Headquarter and to National Human Rights Commission having its Headquarter at Delhi and were dealt with by National Human Rights Commission and not dealt with by Central Bureau of Investigation at Delhi, this Court for the purpose of examining as to whether such commission or omission were constitutional or illegal or not has the requisite jurisdiction.
30. There is strength in the arguments of the learned counsel for the petitioner that the petitioner cannot be denied constitutional remedy of compensation which is available to her at a place where it was denied to her, on the ground that a criminal trial is pending at some other place. This Court, therefore, holds that to decide the constitutional validity of the virginity test conducted on the petitioner as an accused under interrogation can be examined and adjudicated by this Court since her representation in this regard was not acted upon by Central Bureau of Investigation and NHRC having their Headquarters at Delhi.
31. This Court takes this view also in light of the fact that the learned counsel for petitioner is not challenging the outcome of the said test before this court as that can be only challenged as per law before the concerned Trial Court. It is de-hors the criminal trial, its proceedings, appreciation of evidence therein collected by the prosecution agency and outcome of the said trial, that this court has been approached to examine the process of an investigation in which the virginity test was conducted on the petitioner as an accused.
C. THE CONSTITUTIONAL VALIDITY OF VIRGINITY TEST CONDUCTED UPON A FEMALE ACCUSED UNDER INVESTIGATION i. The Case of Petitioner
32. It is submitted on behalf of petitioner that there is no nexus between the above Virginity test and the death of the deceased. As the incident of death of deceased had taken place 16 years prior to the date of conducting the virginity test, the test so conducted on the petitioner 16 years thereafter is malafide and was intended to humiliate the petitioner and substantiate the false case in which the petitioner was implicated. However, when the attempt made by the Central Bureau of Investigation to disprove the virginity of the petitioner proved counter- productive, to cover up the same, Central Bureau of Investigation had invented the new story of hymenoplasty having been undergone by the petitioner. It is, thus, clear that the intention of the Central Bureau of Investigation was to malign the petitioner.
33. It is further the case of petitioner that to the understanding of the petitioner and from the opinion gathered from the Medical Practitioners and the medico-legal experts, the facility for conducting of 'hymenoplasty' was not available in India or in any other Asian country at the relevant point of time, and the petitioner did not even have a passport and that she has not traveled abroad till date. This further disproves the allegation that the petitioner had undergone hymenoplasty and that it amounts to adding insult to injury.
34. Further as per case of the petitioner, even assuming without admitting that the motive attributed to the accused for committing the alleged murder is true, there is no justification for subjecting the petitioner to virginity test as the outcome of the test will not prove the motive or the offence in question. This is so since petitioner's virginity has no nexus with the alleged murder of the deceased.
35. It is further averred on behalf of petitioner that the officials of Central Bureau of Investigation had knowingly and forcefully subjected the petitioner to undergo the 'Virginity test' against her free will on the pretext of proving the false story and are liable to be punished in accordance with law. This is so since the damage caused to the petitioner is unexplainable and undeterminable and can never be measured in terms of money. Apart from this, it is averred that it is necessary to prevent torture of any other innocent victims in future in the name of virginity test by any investigating agency.
36. It is argued on behalf of petitioner that Central Bureau of Investigation has violated the fundamental rights of petitioner under Article 14, 19, 20 (1), 21 and 22 guaranteed under the Constitution of India and that petitioner has been subjected to gender based discrimination by being subjected to undergo the virginity test under the pretext of proving the case of a murder.
37. It is submitted that the conduct of the Central Bureau of Investigation in subjecting the petitioner to virginity test violates petitioner's the right to live with basic human dignity, right to honour, reputation and privacy enshrined under Article 21 of the Indian Constitution.
38. It is stated on behalf of petitioner that as held in D.K. Basu v. State of West Bengal (1997)1 SCC 416, the precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, under-trials, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law. As there is no law permitting virginity test, the impugned conduct of the Central Bureau of Investigation amounts to gross violation of the fundamental rights of the petitioner under Articles 14, 19, 20 (3) and 21 of the Constitution.
39. It is submitted that the Central Bureau of Investigation subjected the petitioner to virginity test without obtaining the permission of any Court. For this reason also, the impugned conduct of the Central Bureau of Investigation is illegal, arbitrary and therefore, unconstitutional. It is further submitted that India is a signatory to Universal Declaration of Human Rights and International Covenant on Civil and Political Rights, hence, bound to abide by the Covenants.
40. It is further the case of petitioner that the National Human Rights Commission erred in failing to consider petitioner's complaint on the ground of pendency of case before the Court. The Commission has not specified as to which court is seized of the matter nor the petitioner was aware of the source of this information as no notice was issued to the petitioner by the commission nor was the petitioner given any opportunity to be heard. It is submitted that the petitioner has not challenged the virginity test conducted by the Central Bureau of Investigation before any Court and that the committal proceedings pending before Chief Judicial Magistrate has nothing to do with the relief sought by the petitioner before the National Human Rights Commission. In fact as per Section 12 (a) of the Protection of Human Rights Act, 1993, the Commission is bound to enquire on a petition filed by a victim into complaint of violation of human rights and since the Commission has abdicated it's function in this regard, the impugned order issued by National Human Rights Commission is ultra vires the aforesaid provision.
41. The petitioner has also stated that the order passed by National Human Rights Commission dated 06/08.05.2009 is ultra virus since no notice was issued to the petitioner before the impugned order was passed and that it is vague, non-speaking and arbitrary. It is also stated that Commission was not justified in relying on Regulation 9 of National Human Rights Commission Regulations 1994 for the purpose of dismissing the complaint filed by the petitioner. It is argued that Regulation 9 (xi) only says that the complaint which is sub judice may not be entertained. It is argued that Regulation 9 (xi) of National Human Rights Commission Regulation 1994 is similar to Section 10 of CPC and, therefore, National Human Rights Commission has abdicated its statutory function under Section 12 of the Protection of Human Rights Act, 1993 in taking the stand that the proceedings of issued of consent to the test as well as the violation of rights are issues that were best adjudicated by competent courts of law. It is argued that the issues raised before National Human Rights Commission were not raised before the Court of Chief Judicial Magistrate or any other Court and the relief sought by petitioner before National Human Rights Commission had nothing to do with the relief sought by the petitioner before the Chief Judicial Magistrate concerned.
42. It is stated that in case the National Human Rights Commission will take shelter under the said section, it will dilute the statutory powers vested in National Human Rights Commission under Section 12 of the Protection of Human Rights Act, 1993. It is also argued if the stand taken by National Human Rights Commission is accepted, detenues and undertrial prisoners will be deprived of fundamental rights and will be left with no remedy. It is stated that the petitioner was taken to a room at Alleppy Medical College where she was made to sign some papers, however, her signatures were obtained by force and without her free consent.
43. It is stated that the virginity test conducted on the petitioner violates Article 21 of the Constitution. Reliance has been placed on the case of Nilabati Behra v. State (1993) 2 SCC 746 and D.K. Basu v. State of West Bengal (supra) that the doctrine of sovereign immunity has no application to State's liability for contravention of fundamental rights and is no defence to the constitutional remedy under Article 32 and 226 of the Constitution which enables award of compensation for contravention of fundamental rights.
44. It is argued that in the case of S. Nambi Narayanan v. Siby Mathews & Ors. (2018) 10 SCC 804, after quoting with approval the judgment in the case of D.K. Basu v. State of West Bengal (supra), the Hon'ble Supreme Court has held that pendency of civil suit for compensation will not bar the constitutional court to grant compensation under the public law remedy. It is further held that reputation of an individual is an insegregable facet of his right to live with dignity.
45. It is stated that Respondent Nos. l to 3 are bound to compensate the petitioner for the custodial torture suffered by her at the hands of the Central Bureau of Investigation and to take disciplinary action against the Investigating officer in the light of the law declared by the Supreme Court in the aforesaid judgments.
ii. Submissions on behalf of Respondents
46. Respondent no. 1, Central Bureau of Investigation, filed reply by way of counter affidavit, wherein it was stated that the virginity test conducted upon the petitioner was necessary for investigation of the murder case. It is also stated that during the visit for medical examination, two women constables had escorted the petitioner and she had consented and had accompanied the women constables to the medical college, as well as the medical officer and Central Bureau of Investigation had taken utmost care not to expose any information of her in media and public. It is stated that there was no presence of any male officer inside or outside the consulting room or the department of Gynaecology where the petitioner was medically examined. It is also stated that before the medical examination, the medical officers had again ensured that informed written consent of the petitioner was in place. It is stated that the petitioner was not subjected to any force and compulsion to undergo the medical examination, and to solve the murder case under investigation, it was essential to find out the past sexual history of the petitioner. It is stated that it is only after the test was conducted on 26.11.2008 and when the petitioner was produced before the concerned Chief Judicial Magistrate on 02.12.2008, that the counsel for petitioner had alleged that the medical test was conducted without her consent.
47. It is stated that since the matter was reported in the media by the persons of media, and because other public persons were present in the court of Chief Judicial Magistrate where the arguments in this regard were addressed by counsel for the petitioner, the Central Bureau of Investigation cannot be held responsible for the reporting of this case by media. It is also stated that the medical examination report of the petitioner by two lady doctors had revealed the surgical interference which was opined by them as 'hymenoplasty" (in the statement recorded under Section 161 Cr.P.C.). It is stated that the Central Bureau of Investigation has not maligned the petitioner and that the medical examination of the petitioner cannot be construed as violation of fundamental right of the petitioner and that permission of the court was not required and Section 53 Cr.P.C. empowers the Investigating Officer to refer the accused for medical examination. It is, therefore, stated that since no damage has been caused to the petitioner, no compensation can be allowed to be given to her. It is also stated that the National Human Rights Commission had considered the matter carefully and had closed the matter.
48. Learned counsel for Central Bureau of Investigation states that the test so conducted was conducted as the investigation had necessitated it on the accused to solve the case in question and at that time, the constitutional validity of such a test being conducted on an accused had not been declared unconstitutional and there is at present, no finding of any Court that such a test could not have been conducted on an accused, though there are numerous judgments that such a test cannot be conducted on a victim of sexual assault.
49. In the rejoinder filed by the petitioner, the averments made in the counter affidavit of the respondent no.1 were denied and it was reiterated that the High Court of Kerala vide order dated 01.01.2009 had observed in its paragraph 88 that the virginity test conducted by respondent no. 1 was totally unnecessary, unfortunate and did not serve any purpose other than making an attempt to throw mud on the petitioner in public.
50. Learned counsel for National Human Rights Commission states that the Commission had considered the matter carefully, and the case of petitioner was closed with the following observations:
"...The Hon'ble Court had already seized the matter. Hence, the Commission is not inclined to proceed with the complaint in accordance with Regulation 9 of the NHRC (Procedure) Regulations, 1994 as amended. The complainant may, if so advise, bring the allegation of violation of human rights to the notice of the Court. The case is closed with these observations..."
51. Learned counsel for National Human Rights Commission argues that the Commission was not in a position to consider the representation of the petitioner in view of Regulation 9 of the National Human Rights Commission(Procedure) Regulations, 1994, which is as under:
"9. The commission may dismiss in limini complaints of following nature-
(xi) Matter is sub-judice before a Court/Tribunal"
52. In support of this, reliance has been placed upon the decision in State of Sikkim v. National Human Rights Commission 2021 SCC OnLine Sikk 183, wherein it was observed as under:
"...18. The National Human Rights Commission (Procedure) Regulations, 1994 as amended, provides in Regulation 9 that in certain cases complaints are not ordinarily entertainable. It provides that the Commission may dismiss in limini complaints of various nature as enumerated below:-
(ii) vague, anonymous or pseudonymous;
(iii) trivial or frivolous;
(iv) barred under section 36(1) of the Act;
(v) barred under section 36(2) of the Act;
(vi) allegation is not against any public servant;
(vii) the issue raised relates to civil dispute, such as property rights, contractual obligations and the like;
(viii) the issue raised relates to service matters;
(ix) the issue raised relates to labour/industrial disputes;
(x) allegations do not make out any specific violation of human rights;
(xi) matter is sub judice before a Court/Tribunal;
(xii) matter is covered by a judicial verdict/decision of the Commission;
(xiii) where it is only a copy of the complaint addressed to some other authority;
(xiv) the matter is outside the purview of the Commission on any other ground."
19. Regulation 9(xi) relates to matter which are sub judice before the court or tribunal. The admitted facts as pleaded do not reflect that the NHRC entertained the complaint when the matter was sub judice before this court. Regulation 9(xii) relates to matter which is covered by the judicial verdict or decision of the Commission. The arguments made by the learned counsel for the petitioner relates to the dismissal of the writ petition in limine which has already been discussed in detail above. Therefore, even this ground does not help the petitioner's case..."
iii. Analysis and Findings
53. The present writ petition was filed in the year 2009, and during the pendency of this writ petition, several judgments of the Hon'ble Supreme Court and other High Courts were passed wherein the constitutional validity of the "virginity" or the "two-finger" test has been adjudicated upon and the test has been declared unconstitutional. These precedents, along with foreign decisions and international law, will be discussed in the succeeding paragraphs.
a. Indian Precedents
54. In Lillu v. State of Haryana (2013) 14 SCC 643, the Hon'ble Supreme Court has held the "two-finger test" to be violative of right to dignity, integrity and privacy of victims of sexual assault., with the following observations:
"7. So far as the two finger test is concerned, it requires a serious consideration by the court as there is a demand for sound standard of conducting and interpreting forensic examination of rape survivors.
13. In view of International Covenant on Economic, Social, and Cultural Rights 1966; United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985, rape survivors are entitled to legal recourse that does not retraumatize them or violate their physical or mental integrity and dignity. They are also entitled to medical procedures conducted in a manner that respects their right to consent. Medical procedures should not be carried out in a manner that constitutes cruel, inhuman, or degrading treatment and health should be of paramount consideration while dealing with gender-based violence. The State is under an obligation to make such services available to survivors of sexual violence. Proper measures should be taken to ensure their safety and there should be no arbitrary or unlawful interference with his privacy.
14. Thus, in view of the above, undoubtedly, the two finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity. Thus, this test, even if the report is affirmative, cannot ipso facto, be given rise to presumption of consent..."
55. The Supreme Court in Re: Assessment of The Criminal Justice System in Response To Sexual Offences (2020) 18 SCC 540 called for the status report from all states and union territories in the country on the question, among others, as under:
"17. Thus, we consider it appropriate to call for status report with regard to the following: -
...(5) whether the medical experts have done away with the Per-Vaginum examination commonly referred to as 'Two- finger test' and whether any directions have been issued by the states in this regard?..."
56. Recently, the Hon'ble Apex Court in State of Jharkhand v. Shailendra Kumar Rai @ Pandav Rai 2022 SCC OnLine SC 1494, relying upon the decision in Lillu v. State of Haryana (supra) and the 'Guidelines & Protocols: Medico-legal care for survivors/victims of sexual violence' issued by Ministry of Health and Family Welfare, Government of India in year 2014, observed that any person who conducts the "two-finger test" shall be in contravention of directions of the Apex Court and guilty of misconduct. The observations are as under:
"...64. While examining the victim, the Medical Board conducted what is known as the "two-finger test" to determine whether she was habituated to sexual intercourse. This Court has time and again deprecated the use of this regressive and invasive test in cases alleging rape and sexual assault. This so-called test has no scientific basis and neither proves nor disproves allegations of rape. It instead re-victimizes and re- traumatizes women who may have been sexually assaulted, and is an affront to their dignity. The "two- finger test" or pre-vaginum test must not be conducted.
66. Whether a woman is "habituated to sexual intercourse" or "habitual to sexual intercourse" is irrelevant for the purposes of determining whether the ingredients of Section 375 of the IPC are present in a particular case. The so- called test is based on the incorrect assumption that a sexually active woman cannot be raped. Nothing could be further from the truth - a woman's sexual history is wholly immaterial while adjudicating whether the accused raped her. Further, the probative value of a woman's testimony does not depend upon her sexual history. It is patriarchal and sexist to suggest that a woman cannot be believed when she states that she was raped, merely for the reason that she is sexually active.
67. The legislature explicitly recognized this fact when it enacted the Criminal Law (Amendment) Act 2013 which inter alia amended the Evidence Act to insert Section 53A. In terms of Section 53A of the Evidence Act, evidence of a victim's character or of her previous sexual experience with any person shall not be relevant to the issue of consent or the quality of consent, in prosecutions of sexual offences.
68. The Ministry of Health and Family Welfare issued guidelines for health providers in cases of sexual violence. These guidelines proscribe the application of the "two-finger test":
"Per-Vaginum examination commonly referred to by lay persons as 'two-finger test', must not be conducted for establishing rape/sexual violence and the size of the vaginal introitus has no bearing on a case of sexual violence. Per vaginum examination can be done only in adult women when medically indicated.
The status of hymen is irrelevant because the hymen can be torn due to several reasons such as cycling, riding or masturbation among other things. An intact hymen does not rule out sexual violence, and a torn hymen does not prove previous sexual intercourse. Hymen should therefore be treated like any other part of the genitals while documenting examination findings in cases of sexual violence. Only those that are relevant to the episode of assault (findings such as fresh tears, bleeding, edema etc.) are to be documented."
69. Although the "two-finger test" in this case was conducted over a decade ago, it is a regrettable fact that it continues to be conducted even today.
72. Any person who conducts the "two-finger test" or per vaginum examination (while examining a person alleged to have been subjected to a sexual assault) in contravention of the directions of this Court shall be guilty of misconduct..."
57. In State of Gujarat v. Rameshchandra Ramabhai Panchal, 2020 SCC OnLine Guj 114, the 'two-finger test' or 'virginity test' was declared as unconstitutional, with the following observations:
"...25. The contents of the medical certificate, Exh.10 are quite disturbing. It appears that in the course of the medical examination of the victim, the two-finger test was conducted.
26. The two-finger test also known as the PV (Per Vaginal) refers to an intrusive physical examination of a woman's vagina to figure out the laxity of vaginal muscles and whether the hymen is distensible or not. In this, the doctor puts two fingers inside the woman's vagina and the ease with which the fingers penetrate her are assumed to be in direct proportion to her sexual experience. Thus, if the fingers slide in easily the woman is presumed to be sexually active and if the fingers fail to penetrate or find difficulty in penetrating, then it is presumed that she has her hymen intact, which is a proof of her being a virgin.
29. The test itself is one of the most unscientific methods of examination used in the context of sexual assault and has no forensic value. Whether a survivor is habituated to sexual intercourse prior to the assault has absolutely no bearing on whether she consented when the rape occurred. Section 155 of the Indian Evidence Act, does not allow a rape victim's credibility to be compromised on the ground that she is "of generally immoral character.
30. The two-finger test is unconstitutional. It violates the right of the victim to privacy, physical and mental integrity and dignity. Thus, this test, even if the report is affirmative, cannot ipso facto, give rise to presumption of consent.....
36. Undoubtedly, the two finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity. Thus, this test, even if the report is affirmative, cannot ipso facto, be given rise to presumption of consent. The Medical procedures should not be carried out in a manner that constitutes cruel, inhuman or degrading treatment and health should be of paramount consideration while dealing with the gender-based violence. The State is under an obligation to make such services available to survivors of sexual violence. Proper measures should be taken to ensure their safety and there should be no arbitrary or unlawful interference with her privacy. Keeping in mind the International Covenant on Economic, Social, and Cultural Rights 1966 and the UN Declaration of Basic Principles of Justice for victims of Crime and Abuse of Power 1985, the apex Court said, rape survivors are entitled to legal recourse that does not retraumatize them or violate their physical or mental integrity and dignity. They are also entitled to medial procedures conducted in a manner that respect their right to consent (Emphasis supplied)
58. In Rajivgandhi v. State 2022 SCC OnLine Mad 1770, the Division Bench of Madras High Court has directed the Government of Tamil Nadu to immediately ban the practice of the 'two-finger' test conducted by medical professionals on survivors of rape, by observing as under:
"20. Before parting with this case, we feel that it is necessary for us to put an end to the practice of the two finger test. We find that the two finger test is being used in cases involving sexual offences, particularly, on minor victims. As early as in 2013, the Hon'ble Supreme Court had held that the two finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity...
24. In view of the above judicial pronouncements, we have no doubt that the two finger test cannot be permitted to be continued. Therefore, we issue a direction to the State Government to ban the practice of two finger test on victims of sexual offences by the medical professionals forthwith."
59. On similar lines as aforesaid, the "Report of the Committee on Amendments to Criminal Law, 2013", headed by Justice (Retd.) J.S. Verma, had made the following observations and suggestions qua the conduct of virginity tests:
"9. The issue of whether sexual assault occurred is a legal issue and not a medical diagnosis. Consequently, doctors should not, on the basis of the medical examination conclude whether rape had occurred or not. Only findings in relation to medical findings should be recorded in the medical report.
10. It is crucial to underscore that the size of the vaginal introitus has no bearing on a case of sexual assault, and therefore a test to ascertain the laxity of the vaginal muscles which is commonly referred to as the two-finger test must not be conducted. On the basis of this test observations/ conclusions such as 'habituated to sexual intercourse' should not be made and this is forbidden by law.
11. Routinely, there is a lot of attention given to the status of hymen. The "finger test" is also conducted to note the distensibility of the hymen. However it is largely irrelevant because the hymen can be torn due to several reasons. An intact hymen does not rule out sexual assault, and a torn hymen does not prove previous sexual intercourse. Hymen should therefore be treated like any other part of the genitals while documenting examination findings in cases of sexual assault. Only those that are relevant to the episode of assault (findings such as fresh tears, bleeding, oedema etc.) are to be documented..."
(Emphasis supplied) b. International Perspective on Virginity Test
60. The 'Convention on the Elimination of All Forms of Discrimination Against Women, 1979', ratified by India, provides as under:
States Parties shall take all appropriate measures:
(a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women..."
61. The a joint statement, titled "Eliminating Virginity Testing: An Interagency Statement", issued in year 2018, by UN Human Rights Office, World health Organization and UN Women calls for a ban on all forms of virginity testing, the same being unscientific, medically unnecessary and unreliable. The concluding part of the statement is as under:
"...This statement establishes that virginity testing is unscientific, medically unnecessary and unreliable; it violates a woman's human rights and is associated with short and long-term adverse health outcomes. The statement expresses a commitment to support efforts to eradicate all forms of virginity testing, thereby upholding the human rights of women and girls across the globe.
The statement calls on governments; health professionals and their associations; international, regional and national health agencies; and communities at large to take the initiative to ban virginity testing and create national guidelines for health professionals, public officials and community members, particularly in countries where virginity testing is widely practised.
Specific strategies to eliminate virginity testing from medical practice:
Medical providers and their associations should be aware of the research that shows that virginity testing has no scientific merit and cannot determine past vaginal penetration or virginity. They should also know the health and human rights consequences of virginity testing, and never perform or support the practice.
Communities should lead in awareness campaigns that challenge myths related to virginity, and harmful social norms that perpetuate the practice of virginity testing. Governments and health authorities should enact supportive legislative and policy frameworks for the sustained elimination of virginity testing. The World Health Organization and endorsing agencies confirm their commitment to supporting all women and girls, communities, organizations and national governments in the elimination of virginity testing...."
(Emphasis supplied) c. Whether "Virginity Test" is covered under Section 53 of Code of Criminal Procedure, 1973
62. It is the contention of the learned counsel for Central Bureau of Investigation that under Section 5
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