The Supreme Court’s decision to declare a medical practitioner who conducts a two-finger test on a rape survivor guilty of misconduct will hopefully end the obnoxious practice which the top court had initially prohibited in 2013 while dealing with the “Nirbhaya” case. It is also noteworthy that the Supreme Court has reiterated that a woman’s sexual history is wholly immaterial while adjudicating on a rape case.
The Supreme Court issued the order while reinstating the conviction by the sessions court of a man who raped and set a minor ablaze. The Jharkhand high court set aside the order based on a two finger-test which said the girl was sexually active. It is beyond human comprehension to subject a raped teen with burn injuries to such a test, and then set the rapist free based on such a conclusion.
In India, courts can look at laws, rules, regulations and practices only when they are called upon to; it is for the legislature or the executive to make timely revisits of these, and make necessary alterations and amendments. Moreover, the courts can only call for an end to practices such as the two-finger test; it is for the executive to implement its directive. If the court has to make a repeat intervention to stop the test, which includes a direction to remove it from MBBS curriculum, it points to gross negligence on the part of the executive.
This is not the first instance in which the changes that the Supreme Court sought were not implemented on the ground because the executive found the original modus operandi to be handy. Two such examples are the sedition law (Section 124A of the Indian Penal Code) and Section 66A of the Information Technology Act. While the former is a relic of the Raj on which the court has put a stay, the latter was declared unconstitutional by the apex court in 2015 as it violated the right to freedom and expression. Still, cases are being framed under these sections, inviting its wrath.
The government must take early steps to ensure that judicial pronouncements are respected.