Is Virginity Testing Legal in India?

No, virginity testing is not legal in India. It is not recognized under Indian law as a valid or scientific practice and is considered a violation of fundamental rights. The act of conducting a virginity test is increasingly being challenged in courts and is viewed as a breach of human dignity, privacy, and gender equality.

What is Virginity Testing?

A virginity test is a controversial and unscientific method used to determine whether a woman has had sexual intercourse. It typically involves examining the hymen to check for tears or conducting a “two-finger test” to assess vaginal elasticity. These practices have been widely condemned for being medically baseless, discriminatory, and invasive.

Legal Framework Against Virginity Testing

1. Violation of Fundamental Rights
   • Right to Privacy (Article 21): The Supreme Court of India, in the Puttaswamy v. Union of India (2017) judgment, upheld the right to privacy as a fundamental right. Virginity tests violate this right by intruding on a woman’s personal and bodily autonomy.
   • Right to Equality (Article 14): Virginity testing discriminates based on gender and reinforces stereotypes about women’s sexual purity, violating the principle of equality.
   • Right to Live with Dignity (Article 21): The act of conducting a virginity test is humiliating and degrading, infringing on the right to live with dignity.
2. Two-Finger Test Ban
   • The two-finger test, historically used in rape investigations, has been declared unconstitutional by the Supreme Court in Lillu @ Rajesh & Anr. v. State of Haryana (2013).
   • The court ruled that the test has no scientific basis and perpetuates the myth that a sexually active woman is of “loose character.”
   • This precedent also applies to virginity testing, as it uses similar methods and causes psychological trauma.
3. Indian Evidence Act, 1872
   • Section 146 prohibits questioning a rape survivor about her past sexual conduct to discredit her testimony. This principle can be extended to argue against virginity testing, as it similarly focuses on irrelevant personal details.
4. Criminalization of Virginity Testing in Certain Cases
   • In 2018, the Maharashtra State Commission for Women recommended criminalizing virginity testing, citing it as a violation of women’s rights. However, no specific central law criminalizes virginity testing nationwide.

Impact of Virginity Testing

1. Medical Perspective
   • Virginity tests lack scientific validity. The presence or absence of a hymen is not a reliable indicator of sexual activity, as the hymen can tear due to non-sexual activities such as sports or physical exertion.
2. Psychological Trauma
   • Women subjected to virginity tests often experience humiliation, anxiety, and psychological distress. It reinforces harmful gender stereotypes and perpetuates the notion of female chastity as a measure of worth.
3. Gender Inequality
   • Virginity testing is inherently discriminatory, targeting only women while ignoring men. It reflects patriarchal norms and societal control over women’s sexuality.

Judicial Stance on Virginity Testing

1. Lillu @ Rajesh & Anr. v. State of Haryana (2013)
   • The Supreme Court declared the two-finger test unconstitutional, stating it violates a woman’s dignity and is irrelevant to determining sexual assault.
2. Rulings in Armed Forces Cases
   • In cases where virginity tests were conducted on women aspiring to join the armed forces, courts have held that such practices are unjustified and discriminatory.
   • For instance, the Bombay High Court in 2019 took a strong stance against virginity testing, calling it a “medieval and regressive practice.”

Efforts to Ban Virginity Testing

1. National Campaigns
   • Women’s rights organizations and medical associations have campaigned against virginity tests, highlighting their lack of scientific credibility and harmful social consequences.
2. Recommendations for Criminalization
   • Various state commissions for women have recommended making virginity testing a punishable offense. Activists have called for legislative action to ensure accountability.
3. Global Context
   • The World Health Organization (WHO) and the United Nations have condemned virginity testing as a human rights violation. They advocate for its global elimination, urging countries like India to adopt stricter measures against it.

Penalties for Conducting Virginity Tests

While no specific law criminalizes virginity testing, individuals conducting such tests can be held accountable under existing laws:

• Outraging Modesty of a Woman (Section 354 IPC): Imposing a virginity test can be prosecuted as an act of outrage against a woman’s modesty.
• Sexual Harassment (Section 354A IPC): Virginity tests can be classified as unwelcome and intrusive physical acts, amounting to harassment.
• Mental Cruelty (Section 498A IPC): Forcing a woman to undergo a virginity test in a marital context can be prosecuted as mental cruelty.

Conclusion

Virginity testing is not legal in India and is increasingly being recognized as a violation of human rights. The judiciary has consistently condemned such practices as unconstitutional and discriminatory. However, there is a need for specific legislation to criminalize virginity testing explicitly and ensure accountability for those who perpetuate it. Advocacy, awareness, and stricter legal frameworks are essential to eliminate this regressive practice and uphold the dignity and rights of women.