PUBLIC INTEREST LITIGATION (PIL)

1. Bangladesh Legal Aid and Services Trust (BLAST)
2. Ain o Salish Kendra (ASK)
3. Bangladesh MahilaParishad (BNWLA)
4. BRAC
5. Manusher Jonno Foundation
6. Naripokkho

1. Secretary, Ministry of Health and Family Welfare
2. Secretary, Ministry of Home Affairs
3. Director General, Directorate of Health Services
4. Inspector General of Police

There is a widespread concern among medical professionals, law enforcement agencies and women’s rights advocates, as well as government officials that the so-called “two finger test” conducted by physicians in medical colleges across the country on women and girls who have made complaints of rape is unscientific and has no forensic value. It has also been suggested that the two-finger test yields no medical or legal benefit for the rape victim and can, on the other hand, be emotionally re-traumatising, as being violative of fundamental rights as guaranteed under Articles 27, 28, 31, 32 and 35(5) of the Constitution. BLAST, after many months of earlier research and consultation on the issue with concerned experts and review of its own casework, as well as coordination and networking with concerned organisations, filed a Writ Petition in this respect along with five leading human rights, women’s and development organisations (Ain O Salish Kendra, Bangladesh MahilaParishad, BRAC, ManusherJonno Foundation, Naripokkho) and two medical experts, Dr.RuchiraTabassumNaved of and Dr.Mobarak Hossain Khan. The Petitioners argued that the impugned practice of conducting the “two finger test” results in violations of the physical and mental integrity or dignity of women and girls who are subjected to rape, and of their rights to be free from cruel, inhuman and degrading treatment, as guaranteed under Articles 27, 28, 31 and 35(5) of the Constitution.

The High Court issued a Rule Nisi asking the Secretary, Ministry of Health and Family Welfare, Secretary, Ministry of Home Affairs, Director General, Directorate of Health Services, Inspector General of Police to respond in four weeks as to why the so called ‘two-finger test’ undertaken upon women and girls who have been raped should not be declared to be without lawful authority and of no legal effect. The Court further asked the respondents why their failure to prohibit the “two finger test” resulting in discriminatory and arbitrary treatment, and violations of their fundamental rights as guaranteed by Articles 27, 28, 31 32 and 35(5) of the Constitution should not be declared without lawful authority. The Court also issued an interim order upon the Secretary, Ministry of Health and Family Welfare to set up a Committee in order to develop a comprehensive guideline for police, physicians and judges of Nari o Shishu Nirjatan Tribunals [Violence against Women and Children Tribunals] on examination and treatment of women and girls subjected to rape and sexual violence within a period of three months.

Mr. Justice Mirza Hussain Haider
Mr. Justice KhurshidAlam Sarkar

The High Court passed an order that it court required the presence and valuable opinion of the experts, named; (i) Dr. Habibuzzaman Chowdhury, Former Head of the Department of Forensics, Dhaka Medical College Hospital; (ii) Dr. Shafiur Akhteruzzaman, Head of Department National Forensics DNA Profile Laboratory, Dhaka Medical College Hospital; (iii) Dr. Zahidul Karim Ahmed, Medico-Legal Expert, Principal, Delta Medical College, Mirpur, Dhaka. (iv) Dr. GulshanAra, Professor of Forensic Medicine; (v) Professor MuzaherulHuq, Medico-Legal Expert,  vice President, Indo-Pacific Association of Law, Medicine and Science. 16th August 2016 is fixed for the presence of the above named experts before the court to give their valuable opinion.

Mr. Justice Gobinda Chandra Tagore
Mr. Justice Abu Taher Md. Saifur Rahman

The Court received opinion regarding various aspects of the Two Finger Test from the former Head of the Department of Forensics, Dhaka Medical College Hospital, Dr. Habibuzzaman Chowdhury; the Head of Department National Forensics DNA Profile Laboratory, Dhaka Medical College Hospital, Dr. Sharif Akhteruzzaman; Principal, Delta Medical College, Mirpur, Dr. Zahidul Karim Ahmed; Dr. Gulshan Ara, Professor of Forensic Medicine and Professor Muzaherul Huq, Medico-Legal Expert, Vice President, Indo-Pacific Association of Law, Medicine and Science.

Mr Justice Gobinda Chandra Thakur
Mr Justice Abu Taher Md. Shamsur Rahman

Respondent no. 1, the Ministry of Health and Family Welfare filed an application for a direction to call forensic experts on the process of conducting two finger test and its usefullness. The application was allowed and six forensic experts were directed to appear and submit their written as well as verbal opinion personally and independently in the court. 

Mr. Justice Gobinda Chandra Tagore
Mr. Justice A.K.M. Shahidul Huq

Five forensic experts  i.e. Head of Department, Department of Forensic, Dhaka Medical College & Hospital; Head of Department, Department of Forensic Medicine, Bangabandhu Sheikh Mujib Medical University; Head of Department, Department of Forensic Medicine, Salimullah Medical College & Hospital; Head of Department, Department of Forensic Medicine, Showrawardi Medical College & Hospital; the Head of Department, Department of Forensic Medicine, Chittagong Medical College appeared and provide their verbal opinion regarding the usefulness of two finger test. All of them were of the opinion that TFT is necessary for the medical examination of rape victim. The court ordered to provide the written opinion on 07.12.17 in the court. 

Mr. Justice Gobinda Chandra Tagore
Mr. Justice A.K.M. Shahidul Huq

The Petitioner placed two medical jurisprudence books namely, Modi- A Textbook of Medical Jurisprudence and Toxicology (25^th Edition) and Simpson’s Forensic Medicine (13^th Edition) before the court, where in Modi, it is clearly stated that, “Per-Vaginum examination commonly referred to by lay persons as ‘two-finger test’ must not be conducted for establishing rape/sexual violence and size of vaginal introitus has no bearing on a case of sexual violence.” In Simpson’s there is reference to the use of speculum, colposcopy for the genital examination of rape victim but no reference to the use of TFT for such examination. 

Mr. Justice Gobinda Chandra Tagore
Mr. Justice A.K.M. Shahidul Huq

The The Petitioner placed the World Health Organization’s recommendation in its publication on “Health Care for Women Subjected to Intimate Partner Violence or Sexual Violence- A Clinical Handbook” before the court, which states “Being sexually assaulted is a traumatic event. Women may be very sensitive to being examined or touched, particularly by a male provider. Proceed slowly. Ask often if she is okay and if you can proceed. There is no place for virginity (or ‘two-finger’) testing; it has no scientific validity. Be very careful not to increase her distress.” The Petitioner also referred the “Guidelines and Protocols –Medico-Legal care for survivors/victims of sexual violence” published by the Ministry of Health & Family Welfare, Government of India which clearly banned the use of two-finger test for genital examination of rape/sexual violence victim. The Respondents sought adjournment till 11.12.17 for filing the compliance with written opinion of the experts. 

Mr. Justice Gobinda Chandra Tagore
Mr. Justice A.K.M. Shahidul Huq

The Respondent no.1 filed affidavit in compliance referring 4 expert opinions. Among them, Dr. Sohel Mahmud, Head of Department, Dept. of Forensic Medicine, Dhaka Medical College made his opinion regarding the use and necessity of per-vaginum examination of rape victim. Dr. A.M Selim Reza, Head of Dept., Dept. of Forensic Medicine, Shahid Showrawardi Medical College and Dr. Md. BElayet Hossain Khan, Head of Dept., Dept. of Forensic Medicine, Sir Salimullah Medical College made identical similar opinion stating the necessity of TFT to identify the rupture of hymen and injury like abrasion, bruise and lacration as a result of forceful sex. Dr. Sumon Mutsuddy, Head of Dept., Dept. of Forensic Medicine, Chittagong Medical College opined referring Modi that finger test becomes crucial to assessing a woman’s virginity. He also stated finger test for examining rape victim is very essential, rational and substantive medical test for concluding concrete, tangible opinion whether a female has been raped or not. The Petitioner sought adjournment for filing an affidavit in reply on the said compliance.

Mr. Justice Gobinda Chandra Tagore
Mr. Justice A.K.M. Shahidul Huq

The Petitioners filed affidavit in reply to the affidavit in compliance filed with the written expert opinion by the respondent no.1. In the reply, the petitioners controvert the expert opinion referring the latest edition of medical jurisprudence books and international guideline on the medico-legal examination of rape victim.

Mr. Justice Gobinda Chandra Tagore
Mr. Justice A.K.M. Shahidul Huq

The respondent no. 1, Ministry of Health and Family Welfare filed an application for adjournment for two weeks for filing affidavit in opposition which was allowed by the court.

Mr. Justice Gobinda Chandra Tagore
Mr. Justice A.K.M. Shahidul Huq

The respondent no.1 filed affidavit in opposition. In its opposition, the respondent states, two methods i.e. the finger test and assessment of state of the hymen, are regularly used in medical examination of rape victim for the determination of occurrence of sexual act.  They refer one earlier version of medical jurisprudence to suport their view. They also state, for providing opinion, whether sexual intercourse having been performed or not, the doctors have to depend on the finger test for assessing dispensability of vaginal orifice. 

Mr. Justice Gobinda Chandra Tagore
Mr. Justice A.K.M. Shahidul Huq

The Respondnet No. 1 filed supplementary affidavit annexing the Health Care Protocol namely “Health Response to Gender Based Violence-Protocol for Health Care Providers” and submitted that two finger test is not required s per the protocol and they also want to not press their earlier affidavit in Opposition filed before this court. 

Mr. Justice Gobinda Chandra Tagore
Mr. Justice A.K.M. Shahidul Huq

After conclusion of the hearing, the Hon’ble court pleased to dispose of the rule with following 8 directions- 

1. The TFT is not scientific, reliable, valid and hereby prohibited in any examination of rape victim.
2. The respondents shall make available the health care protocol ( Health Response To Gender Based Violence- Protocol For The Health Care Providers) to forensic experts, physicians who conduct medical examination on rape victims; police officers who conduct investigation of rape case; public prosecutors appointed in Nari O Shishu Nirjataon Tribunal and other interested private lawyers
3. Physicians/forensic experts shall issue medical certificates about examination of rape, they shall not use the degrading word “habituated to sexual intercourse” and shall not ask any questions of her previous sexual experience.
4. In case of a deep-seated intra-vaginal examination the matter shall be referred to a Gynecologist for an expert opinion to identify an injury or for medical reasons.
5. Per speculum examination is not a must in the case of children/young girls when there is no history of penetration and no visible injuries.
6. The bimanual test is not related to TFT and being related to obstetrician gynecological examinations only, same shall not be practiced in rape victim.
7. The Government shall appoint trained doctors and nurses for medical examination of rape victim. Such examination shall be conducted in presence of preferably female police, female relative and preferably by female physicians. The concern physicians and forensic experts shall strictly maintain the privacy of the victim.
8. The Nari-oShishu Nirjaton Tribunal shall ensure that no lawyer shall ask any degrading question to rape victim which is not necessary to ascertain any information of rape.

Mr. Justice Gobinda Chandra Tagore
Mr. Justice A.K.M. Shahidul Huq