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Sr. Sephy Vs. CBI & Ors., W.P.(Crl.) 1729/2009
By Hon'ble Ms. Justice Swarana Kanta Sharma
1. This Court vide the present judgment examined the grave question of law “Whether virginity test conducted on a female in police custody during investigation is in violation of her fundamental right under Article 21 of the Constitution of India”.
2. This Court was approached by way of Writ Petition, to issue a declaration that the conduct of ‘Virginity test’ on the petitioner (accused of murder) is against the tenets of Fundamental Rights, Constitution of India; to punish the errant officials who had subjected the petitioner to undergo Virginity test against her own free will and for leaking the conduct and result of the test to the media; and to direct the prosecuting authority to pay exemplary compensation to the petitioner for the mental agony/torture/humiliation undergone by her.
3. On 19.11.2008, the petitioner in the present case was arrested and was produced before the Court of Chief Judicial Magistrate, Ernakulam which remanded the petitioner to appropriate authority and, on 25.11.2008, the petitioner was taken to a Medical College, where two lady doctors from the Forensic Science Department and one Gynecologist of the Govt. Medical College were present where the doctors therein subjected her to ‘Virginity test’ and ‘swab test’. Later, it was revealed that the hymen of the petitioner was intact; however, the prosecuting agency fabricated a new story to the effect that the petitioner had undergone surgery for suturing of hymen or "hymenoplasty". The days that followed, the print and electronic media released the news of the virginity test conducted on the petitioner and the story of prosecuting agency having undergone surgery for suturing of hymen and the above reports were made public by the prosecuting agency even before the result of the test was submitted before the Court. Feeling extremely embarrassed and shocked by the conduct of the officials of prosecuting agency, the petitioner preferred a representation before the concerned prosecuting agencies in India stating the true facts and sought their intervention in the matter and requested to redress the grievances of the petitioner. The petitioner had also approached the National Human Rights Commission (NHRC) seeking necessary intervention in the matter and filed a petition/representation. However, the NHRC issued a communication to the counsel for the petitioner expressing that Commission was not inclined to proceed with the complaint in accordance with Regulation 9 of National Human Rights Commission (Procedure) Regulations, 1994 as amended. The NHRC also granted liberty to the complainant to bring the allegations of violation of human rights to the notice of the Court.
4. Some crucial observations and conclusions of the Court are as under:
c. Whether “Virginity Test” is covered under Section 53 of Code of Criminal Procedure, 1973
66. A bare perusal of aforesaid provisions reveal that firstly, virginity test finds no mention in the ‘explanation’ to Section 53 as a technique to be used in the medical examination of an accused person to ascertain the facts which may afford evidence. Apart from techniques to be used in examination relating to sexual offences, certain methods and techniques such as examination of sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling are mentioned. Secondly, the Indian Parliament, while introducing the ‘explanation’ to Section 53 Cr.P.C. by the Code of Criminal Procedure (Amendment) Act, 2005, and listing several forms of medical examination, left the scope for more techniques to be included within its ambit. However, as held by the Apex Court in Selvi & ors. v. State of Karnataka (supra), the said scope would be governed by the rule of ‘ejusdem generis’. As per the Apex Court in, the words “such other tests” should construe to mean and include those tests which are in the same genus as the other forms of medical examination that have been specified. Briefly stated, the rule of ‘ejusdem generis’ commands that meaning of general words following the specific words in a provision of law should be construed in light of the meaning and intent of those specific words. A reading of ‘explanation’ to Section 53 shows that the same mandates medical examination of an accused person by “use of modern and scientific techniques”. It would not be out of context to state here, that, by no stretch of examination, ‘virginity test’ can presumably fall under the said provision. Virginity test is neither modern nor scientific, rather archaic and irrational. Modern science and medical law disapproves the conduct of such tests on women, as already discussed in the preceding paras.
d. Custodial Dignity vs. Constitutional Validity of Virginity Test
74. Since the virginity test was conducted in this case during the investigation of a murder case, and this Court is not deciding the question as to whether it was essential or not but is only examining the constitutional validity of the same, it will be essential to note that even as an accused, the fundamental rights available to an accused/ prisoner/ detainee are not suspended so far as the question of their privacy and dignity is concerned and this has been elaborately discussed in the case of D.K. Basu v. State of West Bengal (supra) and other precedents cited hereinabove.
75. A consideration of the aforesaid precedents, undoubtedly, point out that the “right to dignity” of a person as available under Article 21 of Constitution of India is not suspended even when the person is accused of committing an offence or is arrested. The right to life and personal liberty under Article 21 can be suspended only as per procedure established by law, and such procedure must be just, fair and reasonable and not arbitrary, fanciful and oppressive [Ref: Maneka Gandhi v. Union of India (1978) 1 SCC 248]. Right to personal liberty of an accused gets suspended the moment one is arrested as the same might be necessary for the State security. However, the right to dignity is not suspended or waived even of an accused, undertrial or a convict.
e. Virginity Test: Victim vs. Accused
76. There cannot be two sets of views regarding the test of virginity being in violation of fundamental right of a victim of sexual assault and a woman under investigation. It is not the issue of a person being a victim or an accused but the vital issue is such a test being in violation of fundamental right if conducted on a female, whether a victim or an accused.
77. To hold that conducting virginity test on a woman who is victim of sexual assault and on a woman who may be an accused of an offence will be on different footing or that the earlier will be unconstitutional and the later constitutional, will be a perverse finding and against the intent of the Constitution of India and Article 21.
78. In light of the same, it can also be observed and reiterated that there is no procedure, under any law for the time being, which provides for “virginity test” of a female accused. Virginity testing is a form of inhuman treatment and the same violates the principle of human dignity. The test, being violative of right to dignity of an individual, cannot be resorted to by the State and the same shall be in teeth of the scheme of Indian Constitution and the right to life enshrined under Article 21.
79. This Court has to be guided by values and Constitutional principles essential to establish rule of law in a democratic society that lays stress on respect for inherent dignity of all citizens. The respect for human dignity cannot be questioned and it has been recognised as human right by the Hon’ble Apex Court as part of fundamental right under Article 21. In this regard, Apex Court’s decisions make it clear that notion of dignity may not be so worded in the Fundamental Constitutional right under Article 21, but it has been held to be part of it and also has been held to be of immense value.
80. Most shockingly, in the present case the virginity test was used to determine the truth of the accusation of murder against the petitioner. Undoubtedly, the test in itself is extremely traumatic for a victim of sexual assault as well as upon any other women in custody and is bound to have devastating effect on the psychological as well as physical health of the person.
81. 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 been held in several judgments of the Hon’ble Apex Court, does not have a medical standing. Despite being inaccurate and their being definite studies that in some women hymen may not tear during vaginal intercourse, while in others they may tear even without vaginal sexual intercourse due to sports and other activities and some women may not even have one, such test has been conducted.
82. Further, without an iota of doubt, the same rests on gender bias and society’s view and obsession with the false concept of virginity being equated with purity of a woman. Needless to say, it also amounts to controlling women’s body, their sexual behavior and the view that a woman with the hymen is pure and innocent. The Hon’ble Apex Court, in the most recent case of State of Jharkhand v. Shailendra Kumar Rai (supra), has gone to the extent of holding that in case such tests are conducted on victims of sexual assault, it will amount to misconduct and thus, has tried to do away with this misogynistic practice.
83. This Court, therefore, holds that this test is sexist and is in violation of human right to dignity even of a female accused if she is subjected to such a test while being in custody. The long term and short term negative effects of such a test have been reported in many reports.
84. 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 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 abhorrable notion of differentiation on the basis of gender and stereotypes.
85. The concept of custodial dignity i.e. ensuring dignity of an individual while in custody, whether police or judicial, has been discussed at length in the case of Sunil Batra (II) v. Delhi Administration (1980) 3 SCC 488, which dealt with the torture of persons while in judicial custody. The Hon’ble Apex Court has also held in several judgments regarding violence in police custody. The present case draws the attention of the Court to take note of the important issue of dignity of a female in police custody. This Court holds that the concept of custodial dignity of a female will include her right to live with dignity even while in police custody. Conducting a virginity test on the pretext of reaching truth regarding allegations against her will amount to infringement and violation of her right enshrined in Article 21 and explained in the judgment of D.K. Basu v. State of West Bengal (supra).
86. This Court is not impressed with the argument of the law enforcement agency that the virginity test was necessary to uphold the laws since this argument itself flouts basic principles that a person’s dignity even in custody has to be upheld. The conducting of virginity test not only amounts to interference of the investigating agency with the bodily integrity but also psychological integrity of a woman which will have serious and profound effects on the mental health of a woman.
87. Some fundamental rights cannot be suspended or infringed or abridged even when a person is in custody and right to dignity is one such fundamental right which falls within the ambit of Article 21.
88. This Court, however, makes it clear that right of dignity in custody does not refer to the ordinary stresses and anxieties that a person may feel as a result of being in custody and under interrogation but the right for constitutional protection even while being in custody i.e. right to dignity. However, this should not mean to be taken to be a shield for the detainee from legitimate interrogation by police as per procedure established by law.
89. While our country has made positive and definite strides by way of several judgments of Hon’ble Supreme Court in this regard as far as victims of sexual assault are concerned, this Court holds that on the same analogy as laid down in the judgment of Lillu v. State of Haryana (supra) and State of Jharkhand v. Shailendra Kumar Rai @ Pandav Rai (supra), conducting such tests on a female accused in custody will also amount to violation of her right to dignity and, therefore, in violation of Article 21 of the Constitution of India. Needless to say, rights of an accused in custody are also to be safeguarded even if some rights have to yield to the safety of the State.
90. Under the constitutional system, the Court stands guard against any such practice which may cause unexplainable suffering of human dignity. A higher duty is cast on a Constitutional Court and its solemn responsibility to ensure that the fundamental rights granted by the Constitution of India remain living law at all times and act as constitutional shield for the benefit of every Indian citizen.
f. CONCLUSION AND DIRECTIONS
91. In view of the aforesaid discussion, this petition is disposed of with the observations and directions as stated in the succeeding paragraphs.
92. Prayer (a): The virginity test conducted on a female detainee, accused under investigation, or in custody, whether judicial or police, is declared unconstitutional and in violation of Article 21 of the Constitution which includes right to dignity.
93. Prayer (b): As far as prayer for taking action against Central Bureau of Investigation is concerned, it is not disputed that in the year 2008 when this test was conducted upon the petitioner, there were no guidelines of the Hon’ble Apex Court or otherwise to have declared such tests to be unconstitutional or in violation of fundamental right of a female even qua the victims of sexual assault, and such tests were being conducted in cases of victims of sexual assault all over the country. Therefore, at the relevant time, it was not barred in law or by any judgment to have got it conducted, howsoever despicable or deplorable the practice may have been.
93.1. The contention of the petitioner that selective leaking of the report of the virginity test by Central Bureau of Investigation and introducing false theory of hymenoplasty has amounted to defamation cannot be examined by this Court and the petitioner has other remedies available in law after conclusion of trial, to take recourse to. Needless to say, the right to dignity in custody and actions considered defamatory of the investigating agency are rights independent of each other. The protection of reputation can be in context of a defamation case.
93.2. The anxiety, stress and sense of being stigmatized suffered by the petitioner in this case cannot be held to be constitutionally protected human right but remedy against the same may lie elsewhere under the law of defamation.
94. Prayer (c): The question regarding grant of compensation or as to whether custodial torture had been caused to the petitioner or not has to be decided by National Human Rights Commission, and since the appeal against conviction filed by petitioner is pending before the Hon’ble High Court of Kerala, which is continuation of Trial, the National Human Rights Commission will as per mandate of law and its Regulations i.e. National Human Rights Commission (Procedure) Regulations, 1994, will consider afresh the representation filed by the petitioner regarding custodial torture or compensation once the criminal trial against the petitioner concludes.
95. Prayer (d): With regard to prayer (d), it is not in dispute that at the time when representation dated 17.03.2009 was filed before the NHRC and when the impugned order dated 6/8.05.2009 was passed, the trial of the petitioner was pending before the concerned Court in Kerala. Taking into account the same, National Human Rights Commission had dismissed the representation of petitioner relying upon Regulation 9 of the National Human Rights Commission (Procedure) Regulations, 1994, which provides that the Commission can dismiss the complaints, in limini, relating to matters which are sub-judice before a Court or Tribunal.
95.1. The contention of petitioner that the delay in human right proceedings before National Human Rights Commission has resulted into denial of natural justice and has caused further psychological and sociological harm to the petitioner is without merit as under Regulation 9 of the National Human Rights Commission (Procedure) Regulations, 1994, the Commission was bound by its own rules and could not have given the relief sought for due to bar of the same, however the doors are still not closed as at the end of trial, the petitioner may again approach National Human Rights Commission.
96. Considering the importance and sensitivity of the issue involved in the present case, this Court is also inclined to pass the following directions:
(i) 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
(ii) The necessary information regarding unconstitutionality of virginity test as above be circulated to all investigating agencies/stakeholders through Secretary, Union Ministry of Home Affairs, Secretary, Union Ministry of Health and Family Welfare and Secretary, Department of Health and Family Welfare, Govt. of NCT of Delhi.
(iii) The Delhi Judicial Academy is directed to include in its curriculum and in the workshops conducted for investigating officers, prosecutors and other stakeholders, the information regarding this issue.
(iv) Similarly, the Delhi Police Academy for Training shall also include the necessary information regarding this issue in its training curriculum.
(v) The Commissioner of Police, Delhi is also directed to ensure that the investigating officers are informed and sensitized in this regard.
97. It was clarified during the course of arguments that this Court is examining the question as to whether the virginity test conducted on the petitioner was in violation of her fundamental right to live with dignity and not regarding its outcome and its bearing or admissibility before the Court before whom the trial of the criminal case is pending. It is also clarified that the issue before this Court was only regarding the infringement of fundamental right of the petitioner and the dismissal of representation of the petitioner before National Human Rights Commission having its Headquarters at Delhi and regarding the plea for taking action against officers of Central Bureau of Investigation who were instrumental in getting the test conducted during the course of investigation having its Headquarters in Delhi, and the decision rendered by this Court will have no bearing on the criminal case pending before the concerned courts
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