Virginity test on female accused sexist, unconstitutional: Delhi HC

PTI, NEW DELHI, FEB 7, 2023: The Delhi High Court on Tuesday ruled that conducting a "virginity test" on a female accused is unconstitutional, sexist and in violation of the right to dignity.

The High Court observed that there is no legal procedure that provides for a "virginity test" and such testing is a form of inhuman treatment.

The order was passed by Justice Swarana Kanta Sharma on a plea moved by Sister Sephy, who sought to declare the conduct of a "virginity test" on her in connection with a criminal case over a nun's death in Kerala in 1992 as unconstitutional. 

"It is declared that the virginity test conducted on a female detainee, accused under investigation, or in custody, whether judicial or police, is unconstitutional and in violation of Article 21 of the Constitution, which includes right to dignity," Justice Sharma said. 

"This court, therefore, holds that this test is sexist and in violation of the human right to dignity even of a female accused if she is subjected to such a test while being in custody," the judge said.

The court emphasised that the concept of "custodial dignity" of a female includes her right to live with dignity even while in police custody and conducting a virginity test on her not only amounts to interference of the investigating agency with her bodily integrity, but also with her psychological integrity." 

Strangely, though the word 'virginity' may not have a definite scientific and medical definition, it has become a mark of purity of a woman. The intrusive testing procedure, as has been held in several judgments of the Hon'ble apex court, does not have a medical standing," the High Court observed."

It will be difficult for this court to hold, being guided by the constitutional principles of fundamental rights, that a person in custody of the authorities surrenders the right to bodily integrity and submits to bodily intrusion for the prosecution to find evidence through its body."

The feeling of being demeaned by such treatment in custody by bodily invasion through conducting a virginity test also brings forth the undesirable and abhorrent notion of differentiation on the basis of gender and stereotypes," it said. 

The court also said the right to dignity is not suspended even when a person is accused of committing an offence or arrested and the right to life and personal liberty can be suspended only in accordance with the procedure established bylaw, which must be just, fair and reasonable and no arbitrary, fanciful and oppressive." 

The right to personal liberty of an accused gets suspended the moment one is arrested as the same might be necessary for State security.

However, the right to dignity is not suspended or waived even of an accused, undertrial or a convict," the court said. The petitioner had alleged before the court that she was forcibly subjected to undergo a "virginity test" in 2008 by the Central Bureau of Investigation (CBI) under the pretext of an investigation to substantiate the agency's case in relation to the nun's death in 1992 and the test  results were leaked.