Himachal Pradesh HC grants Rs 5 lakhs compensation to minor rape survivor after hospital conducts banned “two-finger” test

Himachal Pradesh: The Himachal Pradesh High Court recently awarded Rs 5 lakhs as compensation to a minor rape survivor after a hospital conducted the banned ‘two-finger’ test. At first, the compensation will have to be paid by the State and then, it should be recovered from the erring medical professionals, after holding an inquiry, Justices Tarlok Singh Chauhan and Satyen Vaidya said.

“Since “two-finger test” is violative of right of rape survivors to privacy, physical and mental integrity and dignity, therefore, in the given background, the respondents are directed to pay a sum of Rs.5 lacs, as compensation, to the child victim, for the trauma, embarrassment, humiliation and harassment having been caused to her at the hands of the Doctors in the Civil Hospital Palampur, which shall, at the first instance, be paid by the State and thereafter recovered from the erring medical professional(s), after holding an inquiry.”

The Court further ordered for an inquiry to be conducted against those doctors, who designed the proforma. Certain questions in the proforma prepared by the hospital included questions on the survivor’s virginity, to which the court took serious exception. The mere fact that some of them have since retired will not come in the way of the respondent-State to impose liability, the Court clarified. 

Further, inquiry should be held against all those Doctors, who medically examined the child victim and issued the medico legal certificates in question and thereafter, responsibility be fixed, the court ordered. 

The Court noted that the “two-finger test” is violative of right of rape survivors to privacy, physical and mental integrity and dignity. This was banned by virtue of the Supreme Court’s judgement in Lilu @ Rajesh vs. State of Haryana, (2013). 

After going through the medical guidelines and relevant protocols which were adopted by the State government, the Court reiterated that “two-finger test or “per-vaginum examination” has been strictly prohibited. 

When the Secretary (Health) to the Government of Himachal Pradesh was called to court during one of the hearings, they were unable to justify the proforma as issued by the Civil Hospital, Palampur. It was stated that this was designed by some of the doctors at Civil Hospital, Palampur alone. Such medico legal certificates are not being issued anywhere in the State of Himachal Pradesh and have been withdrawn with immediate effect even from Civil Hospital, Palampur, the court was apprised. 

When it comes to minor victims, they would have to suffer untold miseries, especially when confronted with columns which apart from being humiliating are even self-incriminating. In the present case, the “irresponsible medical professionals” who designed the proforma and those, who medically examined the child victim, cannot be allowed to go scot-free and the child victim essentially and legally needs to be compensated, the Court underscored. 

On these grounds, the court awarded compensation to the minor. The Bench also asked medical professionals to strictly desist from undertaking “two-finger test” on the rape survivors, failure of which would call upon prosecution. 

The court also pointed out, in dismay, that the Special Judge and the District Attorney weren’t sensitive enough while conducting the case.

Rape is a monstrous burial of survivor’s dignity: HC

In the judgement, the court also deep-dived into what exactly were the mental and emotional consequences of rape on survivors.  “Rape” is not only a crime against an individual, but also a crime, which destroys the basic equilibrium of the social atmosphere, it said.  “Rape not only lowers the dignity of a woman, but also mars her reputation”. 

When a murderer destroys the physical frame of a victim, a rapist degrades and defiles the soul of a helpless female, the court said. 

“The plight of the woman and shock suffered by the victim can be well visualized. The victim of rape grows with traumatic experience and an unforgettable shame haunted by the memory of the disaster forcing her to a state of terrifying melancholia. The torment on the victim has the potentiality to corrode the poise and equanimity of any civilized society”. 

Rape is a crime against the holy body of a woman and soul of the society and no one has the right to encroach. 

“Rape is an assault on the individuality and inherent dignity of a woman with the mindset that she should be elegantly servile to men. “Rape” is a monstrous burial of her dignity in the darkness. It is a crime against the holy body of a woman and the soul of the society. It is said that one's physical frame is his or her temple. No one has any right of encroachment”.

[Read Order]