Virginity test on female accused sexist, unconstitutional, says Delhi High Court

The Delhi High Court said that no legal procedure allows for a 'virginity test' and that such testing is inhumane. According to Justice Sharma, the virginity test conducted on a female detainee, accused person under investigation, or person in custody is ruled unconstitutional and in violation of Article 21 of the Constitution, which includes the right to dignity.

The Delhi High Court ruled that conducting a 'virginity test' on a female accused is unconstitutional, sexist, and violates her right to dignity on Tuesday, February 7. The Court said that no legal procedure allows for a 'virginity test' and that such testing is inhumane.

Justice Swarana Kanta Sharma issued the order in response to a plea filed by Sister Sephy, who sought to declare the conduct of a 'virginity test' on her in connection with a criminal case involving a nun's death in Kerala in 1992 as unconstitutional. 

Justice Sharma responded that the virginity test performed on a female detainee, accused person under investigation, or person in custody, whether by the judicial system or the police, is unconstitutional and in violation of Article 21 of the Constitution, which includes the right to dignity.

"Thus, this court holds that this test is sexist and violates the human right to dignity even of a female accused if subjected to such a test while in custody."

The Court stressed that a female's 'custodial dignity' includes her right to live with dignity even while in police custody, and conducting a virginity test on her amounts to the investigating agency interfering not only with her bodily integrity but also with her psychological integrity.

"The term 'virginity' has strangely evolved into a representation of a woman's purity despite lacking a precise scientific and medical definition. The intrusive testing procedure, as has been held in several Supreme Court decisions, lacks medical justification," the Court added. 

It will be challenging for this Court to rule that a person in custody of the authorities surrenders the right to bodily integrity and consents to physical intrusion for the prosecution to uncover evidence through its body.

The statement continued, "The feeling of being demeaned caused by such treatment in custody by physical intrusion by performing a virginity test also brings forth the undesirable and abhorrent notion of differentiation based on gender and stereotypes."

The court ruled that even when a person is arrested or accused of committing a crime, their right to dignity is unaffected, and their right to life is unaffected, and personal liberty can be suspended only through the legal process, which must be just, fair, and reasonable, rather than arbitrary, fanciful, and oppressive.

"For the sake of state security, an accused person's right to personal liberty may be suspended at the time of the arrest. However, be it accused, undertrial or convicted person, the right to dignity is not suspended or waived," the Court said. 

The petitioner alleged in Court that the Central Bureau of Investigation (CBI) forced her to undergo a 'virginity test' in 2008 under the guise of an investigation to substantiate the agency's case in relation to the nun's death in 1992 and that the test results were leaked.

(With inputs from PTI)