‘Two-finger test’ in Rape Cases: Supreme Court takes a firm stand and directs Meghalaya government to eradicate the evil practice

In a recent order, the Supreme Court (SC) expressed its disappointment over the use of ‘two-finger test’ in a rape case despite being deprecation by the apex court. The bench constituting Justice Rajesh Bindal and Justice CT Ravikumar took a firm stand against the controversial ‘two-finger test’ and directed the Meghalaya government to ensure the eradication of this evil practice. During the proceedings, the SC considered the decision in Lillu @ Rajesh and Anr. vs. State of Haryana case which states that the ‘two-finger test’ violates the privacy of rape victims. The bench also noted that the decision in the Lillu case was passed before the occurrence of the present incident. It said “It is true that the incident in the case on hand had happened a decade ago, to be precise, on 26.10.2013. Thus, the case on hand revealed the continuance of contumacious conduct of conducting the “two-finger test” even after the decision of this Court in Lillu Alias Rajesh and Anr. v. State of Haryana…”

The SC bench was hearing an appeal against the decision of the High Court that affirmed the conviction of an accused for the offence of rape. It illustrated that “While considering the petition and coming across the shocking incident which reveal that despite the prohibition on practice of conducting ‘two-finger test’ to determine whether a victim of a rape was habituated to sexual intercourse, which act strongly deprecated by this Court as it being regressive and invasive nature of test, we put a question to the learned counsel for the State as to what steps have been taken to ensure to eradicate this evil practice, in the light of various decisions of this Court.” In addition, the learned Advocate General of the State of Meghalaya Shri Amit Kumar submitted that “in compliance with the decision of this Court in ‘State of Jharkhand vs. Shailendra Kumar Rai @ Pandav Rai,’ appropriate action to eradicate the evil practice has been taken.” In the Shailendra Kumar Rai case, the SC reiterated the prohibition of the ‘two-finger test’ in rape cases and warned that violation of directions issued by the court would be treated as misconduct and appropriate disciplinary action would be taken.

In context with this, the SC bench held that “When a particular practice which is deprecated by this Court repeatedly and described it as a regressive and invasive nature, we are of the considered view that the proposed action in terms of the said letter dated 29.4.2024 should have been specific and the consequences must have been spelt out as of serious nature.” The SC bench listed the matter for further hearing on September 09, 2024.