The Supreme Court, while adjudicating a Criminal Appeal originating from the Meghalaya High Court has expressed its dismay over the continued use of the "two-finger test" in a rape case, despite its condemnation by the Apex Court. Unhappy with the orders issued by the state of Meghayala to prevent the practice, the Court observed that action proposed to be taken against persons who continue to conduct the said test should be specific and consequences must be spelt out.

The Bench of Justice C.T. Ravikumar and Justice Rajesh Bindal was hearing an Appeal challenging the High Court's affirmation of the conviction of the accused, now the appellant, for the offence of rape. The Court termed the practice of conducting the "two finger test" evil and contumacious.

The case in question, dated back to October 26, 2013, brought to light the persistence of this controversial practice even after the Supreme Court's landmark ruling in Lillu Alias Rajesh and Anr. v. State of Haryana [(2013) 14 SCC 643], which declared the test violative of a rape victim's right to privacy.

"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 [(2013) 14 SCC 643]," the Bench noted.

During the proceedings, the Court was confronted with the disturbing revelation that the "two-finger test" had been conducted on the rape victim. Prior to this, the Court had sought clarification from the State of Meghalaya regarding measures taken to eliminate the practice of the "two-finger test" in rape cases. The Bench sought the State of Meghalaya's response as to what steps have been taken to ensure to eradicate this evil practice, in the light of various decisions of the Apex Court.

The Court in an Order dated May 7, said, "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."

Advocate General Amit Kumar appearing for the State of Meghalaya, 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. Additionally, Kumar referred to the guidelines issued against the use of this practice and a recent communication highlighting the consequences of violating the ruling in Shailendra Kumar Rai's case. Further, he sought time to get instructions on the question put forth by the Court.

However, the Bench expressed dissatisfaction with the response and emphasized the need for specific measures and delineation of serious consequences for non-compliance. The Court stated that in cases where a practice has been unequivocally deprecated by the Court, mere warnings are insufficient.

"On going through this, we found that what was stated therein is only that in case such test being conducted, same would be treated as misconduct and appropriate disciplinary action would be taken against the person. 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 Court said.

Consequently, the State Counsel assured the Court that further directives would be issued in light of the Shailendra Kumar Rai case to ensure the eradication of the controversial practice.

"In the said circumstances, learned Advocate General for the State of Meghalaya would submit that appropriate further orders would be issued in the matter imbibing the very spirit of the judgment of this Court in Shailendra Kumar Rai (supra) and with a view to ensure eradication of the aforesaid evil practice of conducting ‘two-finger test’," the Court noted.

Accordingly, the Court scheduled the matter for further consideration on September 3.

Cause Title: Sunshine Kharpan v. The State of Meghalaya & Ors.


Petitioner: Senior Advocate Sonia Mathur, Advocates Divik Mathur, Bharadwaj S (AOR), Nikhil Jaiswal

Respondent: Advocates Avijit Mani Tripathi (AOR), Upendra Mishra, P.S. Negi

Click here to read/download the Order