NEW DELHI: The Delhi High Court has on Tuesday declared a virginity test conducted on a female detainee is unconstitutional and in violation of the right to dignity under Article 21 of the Constitution.
"The concept of custodial dignity of a female will include her right to live with dignity even while in police custody. Conducting a virginity test on the pretext of reaching truth regarding allegations against her will amount to infringement and violation of her right enshrined in Article 21 of the Constitution," a single bench of Justice Swarana Kanta Sharma said.
The judgement came a writ petition filed by Sister Sephy, convicted for the murder of Sister Abhaya in 1992 in Kerala.
The petitioner claimed she was forced to undergo virginity test by the CBI, which also leaked the report to the media before furnishing it to the trial court.
In its decision, the court said conducting of virginity test not only amounts to interference of the investigating agency with the bodily integrity but also psychological integrity of a woman which will have serious and profound effects on the mental health of the woman.
"The virginity test conducted on a female detainee or accused under investigation whether in judicial or police custody is unconstitutional," it said.
The bench said this court is not impressed with the argument of the law enforcement agency, CBI that the virginity test was necessary to uphold the laws, saying this argument itself flouts basic principles that a person’s dignity even in custody has to be upheld.
The court clarified it examined the matter on the issue whether the virginity test conducted on the petitioner was in violation of her fundamental right to live with dignity and not regarding its outcome and its bearing or admissibility.
Justice Sharma directed that its judgement should be forwarded to different authorities including the Ministries of Home Affairs and Health and Family Welfare, for taking note of its contents and compliance.
The petitioner also contended the CBI's selective leaking of the report of the virginity test and introducing false theory of hymenoplasty has amounted to defamation.
The court said this cannot be examined by it as she has other remedies available in law after conclusion of trial, to take recourse to.
"Needless to say, the right to dignity in custody and actions considered defamatory of the investigating agency are rights independent of each other. The protection of reputation can be in context of a defamation case. The anxiety, stress and sense of being stigmatised suffered by the petitioner in this case cannot be held to be constitutionally protected human right but remedy against the same may lie elsewhere under the law of defamation," the bench said.