The Jammu & Kashmir High Court on Thursday(24.12.2020) ordered health professionals across the Union Territory of Jammu and Kashmir, and the Union Territory of Ladakh should strictly desist from carrying out the two-finger test on rape survivors. (State V/S Mohd. Khan).
A Bench of acting Chief Justice Rajesh Bindal and Justice Sanjay Dhar also directed all subordinate courts in Jammu & Kashmir and Ladakh to avoid disclosing the identity of rape survivors in their proceedings and judgments.
"We direct that all the Courts in the Union Territories of Jammu & Kashmir, and Ladakh to avoid disclosing the identity of rape survivors in their proceedings and judgments. A further direction is issued to all the health professionals of Union Territory of Jammu & Kashmir, and Union Territory of Ladakh to strictly desist from undertaking “two-finger test” known as “per-vaginum examination” on the rape survivors," the Court ordered.
The observations were made after it came to the notice of the High Court that the trial court in a judgment acquitting a rape accused had mentioned the name of the survivor several times. The High Court had also found that the rape survivor was subject to a two-finger test.
Rape, the Court said, is not merely a physical assault but it is the destruction of the personality of the victim. Therefore, Courts have to act responsibly and with sensitivity, while dealing with cases of rape, particularly, while referring to the prosecutrix, it added.
In this Case, the State sought leave to appeal against the judgment dated 29.11.2017 passed by the Principal Sessions Judge, Bhaderwah File No.07/Sessions Challan titled State v. Mohd. Imran Khan, whereby the respondent was acquitted of the charge for offence under Section 376 RPC.
The Counsel for the petitioner-State contended that the prosecutrix, in the instant case, was minor at the time of the occurrence and she had in her statement recorded before the Court fully supported the prosecution case.
According to the Counsel, the Trial Court had disbelieved the statement of the prosecutrix on technicalities and for flimsy reasons.
Keeping in view the contentions raised by the learned AAG, the Court found that a prima facie case for grant of leave to file appeal was made out.
Accordingly, the application was allowed and the leave to appeal against the impugned judgment was granted.
The Division Bench stated that they observed in the judgment given by the Trial Judge, mention of the name of the prosecutrix at several places which is impermissible in law and as per Section 228A of the IPC prohibits disclosure of the identity of the victim of certain offences. These offences include offence under Section 376 IPC”.
The Bench also stated that even though prohibition under Section 228A may not strictly apply to this judgment of a court, the courts shall restrain themselves from the disclosure of the name(s) of prosecutrix in their orders and judgments; this will avoid embarrassment and humiliation to a victim of rape. In addition, it was stated that rape is not only a physical assault but also a destruction of the personality of the victim.
The Bench also stated that as per 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, the survivors of rape as provide that rape survivors are entitled to medical procedures which shall be conducted in a manner that respects the victim’s right to consent. Also, as stated in these Covenants, it is required by the State to make such services available to the survivors of sexual violence and that required measures should be taken to ensure their safety and that their privacy is not interfered with arbitrarily or unlawfully
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