Sparking what is bound to be an unwelcome controversy for the Aam Aadmi Party government in Delhi, the state health department reportedly issued guidelines to city hospitals allowing the two finger test for sexual assault cases in select cases on the grounds that failure to do so could 'result in injustice'. Those guidelines have now been hastily withdrawn by the AAP government which is promising action against the officials who issued them.
Delhi Health Minister Satyendra Jain told a hastily convened press conference on Monday that the circular had been 'misinterpreted' and that the test wouldn't be used for sexual harassment cases.
However, he said that the circular wouldn't be withdrawn and instead the ministry would issue a clarification over it.
According to an Indian Express report, the guidelines on the test, which is also known as the 'per vaginal test' were issued by a three member committee of doctors on 31 May in which they recommended that physicians should not "be made to function under the constraint of a complete ban of these essential steps in the internal examination of a sexual assault victim."
The committee also reportedly said there was a misconception that the test was conducted to judge if a woman is habituated to sexual intercourse and that the test was purely to examine genital organs for forced penetration, document injuries, check for injuries and collect samples.
It also said that the test was to be conducted only in certain cases after taking the informed consent of the woman and in the cases of very young girls under anaesthesia.
“To do away with this pelvic examination would amount to incomplete assessment of the victim and result in injustice and low conviction rates,” the guidelines reportedly state.
A senior doctor was also quoted as saying in Hindustan Times report that the test was conducted only in cases where sexual assault victims are bleeding or have some discharge.
"It is to treat the patient and save her life and we have been doing it in specific rape cases,” the doctor said.
The guidelines issued by the Delhi government come after the Central Information Commission asked the Delhi government to suo moto make public whether the controversial two-finger test to determine rape has been banned in the national capital since the health department failed to spell out a clear policy on it.
Information Commissioner Sridhar Acharyulu had noted at the time that no test could be conducted which violates a victim's right to privacy.
But despite the committee's justifications, its directive ran completely against the Union Health Ministry's guidelines, which are specific on the fact that the test is 'not scientific' and shall not be performed.
It's not just the Union Health Ministry, as even the Supreme Court had earlier noted that the two finger test violated the right to privacy of the victim.
"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," a bench had noted.
"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 bench said.
The Delhi health ministry's justification that doing away with the test would result in low conviction rates is also completely wrong.
In a detailed report on sexual assault cases in India, lawyers had told Human Rights Watch that "usually no acquittal or conviction rests completely on the findings of the finger test, but the defense uses these findings to break the morale of the survivor while she is testifying in court, to question her character and credibility, or to dispute her consent to the sexual act under consideration."
If kept in place, Delhi would have been the only state to endorse a test that is clearly outdated, unnecessary and violates a woman's rights. The collection of forensic evidence for proving sexual assault clearly doesn't require the two-finger test to be performed . More appalling was the state's health department willingness to approve the test for child victims, even under anaesthesia is incomprehensible.
The AAP government is now hastily backtracking in the face of political fire, a belated decision that is hardly comforting for citizens who would expect the party and its leader to have never made such a callous error to begin with. The state health department guideline clearly violated the spirit of the Hippocratic oath which is clear in its directive: First, do no harm. A directive that the AAP government, would do well to embrace.
Updated Date: Jun 08, 2015 14:02:17 IST