Next, Benches Acting Chief Justice Rajesh Bindal & Judge Sanjay Dhar provides direction to all health professionals in the Jammu & Kashmir Union Territory, and the Ladakh Union Territory “to firmly stop doing the ‘two-finger test’ known as the ‘vaginal exam’ on rape victims“.
The problem is before the Court
The State requests permission to appeal the verdict dated 29.11.2017 which was passed by the Main Session Judge, Bhaderwah File No. 07 / Challan Session entitled Negara v. Mohd. Imran Khan, where the defendant was acquitted of infringement under Section 376 of the RPC.
The adviser to the applicant state argued that the prosecutrix, in the instant case, was minor at the time of the incident and he had recorded in his statement before the Court fully supported the prosecution case.
According to the lawyer, the trial court distrust prosecutrix statements on technical matters and for weak reasons.
Keeping in mind the contradictions raised by the learned AAG, The Court found that a prima facie case for granting leave to appeal had been filed.
Hence, this application was permitted and permission to appeal the alleged verdict was granted.
Prior to parting with the order, the Court noted that the Court Judge had mentioned the prosecutrix by name at several places in the verdict.
The court said,
“Section 228A of the IPC prohibits disclosure of the identity of victims of certain offenses, which include offenses under Section 376 of the IPC. In the pari materia of the aforementioned provisions are Article 228A of the J&K Ranbir KUHP, which applies to the case at hand at the relevant time.. “
The court also relies on the Court of Appeal’s decision in cases State of Punjab v. Gurmeet Singh, (1996) 2 SCC 384, Bhupinder Sharma v. Himachal Pardesh State (2003) 8 SCC 551 & Nipun Saxena v. Union of India and others (2019) 2 SCC 703 and concludes that All Courts are bound to avoid disclosing the names of victims of rape in court proceedings and in their judgments.
The court also said,
“In fact, the prohibition is contained in Article 228A probably not applies strictly to Court decisions, however Courts should avoid disclosing the prosecutrix’s name in their orders and decisions, in order to avoid embarrassment and humiliation for the victim of rape.. ”
What matters, the Court said,
“Rape is not only physical assault but also defects the victim’s personality. Therefore, Courts must act responsibly and with sensitivity when handling rape cases, particularly in relation to prosecution. “
It further notes that in the instant case, the prosecutrix, who was a minor at the relevant time, was subjected to a two-finger test and “who must have violated his privacy, physical and mental integrity, and dignity“, The Court, citing the decision of the Apex Court in the case Lillu and others v. State of Haryana, (2013) 14 SCC 643, said,
“The two-finger test and its interpretation violates the rights of rape victims to privacy, physical and mental integrity, and dignity. Thus, the “two-finger test” has been declared unconstitutional. “
The court also noted that the “two finger test”, has been strictly prohibited under guidelines and protocols issued by the Ministry of Health and Family Welfare, Government of India.
What matters, the Court said,
“It is the current need to impose a ‘two-finger test’ ban on victims of rape with full force and in this case a directive is needed to be extended to all health professionals in the United Territory of Jammu and Kashmir, and Ladakh., so that the Supreme Court decision and guidelines and protocols are issued by the Ministry of Health and Family Welfare, Government. from India, about this matter is taken seriously. “
Lastly, the Court directs all Courts in the Union Territory of Jammu & Kashmir, and Ladakh to avoid disclosing the identity of the victim of rape in their process and judgment.
Further directives were issued for all health professionals in the Jammu & Kashmir Union Territory, and the Ladakh Union Territory to firmly stop doing the “two-finger test” known as the “vaginal exam” on rape victims.
Case title – J&C v. Status Mohd. Imran Khan
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