Virginity test on female accused unconstitutional: Delhi High Court






A Single bench judge Justice Swarana Kanta Sharmaafter hearing the writ petition held that conducting a virginity test on an accused under investigation of a female detainee, accused under investigation or in judicial or police custody is unconstitutional and violates the fundamental right of Article 21 of the Indian constitution.

Facts of the case is that Catholic Nun Abhaya, 20 years old was found dead inside the wall of the convent of Kottayam on March 27, 1992 wherein the court found Sister Sephy and Father Thomas Kottoor guilty of murdering her and convicted them under section 302 of IPC. The appeal against the said conviction is pending before the High court of Kerala.

Subsequently, Sister Spehy filed a writ petition before High court of Delhi for forcefully conducting virginity test upon her. The question of law in this petition was whether conducting the virginity test is constitutional or not and whether the fundamental rights of Article 21 were violated.

The result of the said test was allegedly leaked to the media by the CBI and it is the case of the petitioner that the conduct of the CBI in subjecting the petitioner to a virginity test forcefully against her free will and selective leakage of the test by the investigating agency to the electronic and print media even before submitting the result before the concerned Court amounts to a violation of petitioner’s fundamental rights.

The bench also remarked that the right to dignity of a person under Article 21 is not suspended even for the person who is accused of committing an offence or being arrested for a crime.

The word virginity is not defined in medical and scientific definitions, it becomes a symbol of purity in women.

 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.

The bench further stated that the unconstitutionality of the virginity test should be circulated to all researchers Agencies/Stakeholders through the Secretary, Union Ministry of Health and Family Welfare and Secretary, Health Department and Family Welfare, Union Ministry Home Affairs, Secretary, NCT of Delhi Govt. and also directed to conduct the workshop for investigating officers, prosecutors and other stakeholders and the commissioner of police, in Delhi directed to inform the investigation officers about the same.

Edited by: Ms. Nandini Nair, Content-Head at Lawgic

Story update by: Ms. Sai Sushmitha Namala, Correspondent at Lawgic.

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