This Article is written by Sai Vivek Rao Beerelly (currently in 2nd Year of BBA LLB at Symbiosis Law School Hyderabad)
Table of Contents
Privacy means letting someone be alone. Definition of Right to Privacy according to Black’s Law Dictionary is “right to be let alone; the right of a person to be free from unwarranted publicity; and the right to live without unwarranted interference by the public in matters with which the public is not necessarily concerned.” In India, Article 21 of the Indian Constitution deals with Right to privacy and defined as “Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law”. Before the case of “Maneka Gandhi vs. Union of India”, the right to life and personal liberty was guaranteed only for arbitrary actions of the executives and not for any legislation actions by the state as the state could interfere with the rights of citizens if it could support by the valid law. But after this landmark Article 21 is not only protecting the right to life and the right to liberty from executive actions but also legislation action as well. Which means that a person can be proof of his personal liberty and life if the rights are unprivileged if two conditions are obeyed and those are firstly, there must be law and secondly, there must be procedure prescribed by the law. If these two conditions are obeyed than everything is fair and reasonable.
So everyone has some kind of privacy and their right to say about it. So here the topic is about Virginity test and right to privacy. “Virginity is the state of a person who has never engaged in a sexual intercourse”. Different people across the globe have different was to detect a woman is a virgin or not which is called as virginity test. This is done only to divide unadulterated women and adulterated women, Purity women is decided on the basis that whether women had sexual intercourse or not and if it is found that a woman had not intercourse that women is given respect and felt to be worthy also this kind of practice is mainly done on an unmarried woman and it is found that most of the times the consent of the women is not taken. This kind of process is mainly done in countries like Afghanistan, Bangladesh, India, Jordan, South Africa, Egypt, Turkey, Sri Lanka, Uganda and many more. So basically, to know whether a woman is virgin or not people use few steps to find out the same such as they first check that whether a woman has intact hymen or not because it is believed that the hymen can be torn only result of sexual intercourse. Second type is called as ‘Two Finger Test’ which is normally performed by the doctor by inserting two fingers into women’s vagina to check the level of vaginal laxity, which helps to know woman is “habituated to sexual intercourse” this could also know about the hymen.
After a few studies, World Health Organisation (WHO) suggested that there is no scientific reason that hymen can be broken during sex but there are many other various reasons so World Health Organisation (WHO) has banned the “Two-Finger Test” stating that is unethical by the medical practitioner despite the same In case of “Lilu @ RajeshandAnr vs. State of Haryana”Supreme Court of India has passed the judgement that “Two Finger Test” must be banned as hypothetical and unconstitutional and previous account of sexual intercourse should not be taken into consent or consideration of consent by the victim also it has ordered government authorities to find the different way and much better way of medical procedure to confirm the sexual assault and for which the union health ministry has given a new procedure after working with Department of Health research (DHR) and Indian Council of Medical Research (ICMR) for controlling criminal assault cases.
VIRGINITY TEST AND ITS BACKGROUND
Firstly, Virginity means “A state of person never involved in sexual intercourse” and a virginity test is a process and practice to know whether a women or a girl is a virgin or not i.e. ever involved in sexual intercourse or not. The test is conducted to check the presence of unbroken hymen as it is assumed that can be broken by sexual intercourse. The basic type of virginity test is “Two-Finger Test” where a doctor inserts his two fingers into vagina and checks the level of vaginal laxity to know whether a woman is habitual to sexual intercourse and also to check the presence of hymen.
BACKGROUND OF VIRGINITY TEST
In many societies around the world women are the considered to be man’s property i.e. Father or Husband. Which means that their bodies are dominated by male and their value is demonstrated based on their purity i.e. virginity. Virginity testing doesn’t have any evidence but it is just a cultural, social, and religious belief that hymen can be broken only by sexual intercourse. Society expects that women should be virgin until they get married. This done mainly during marriage and also believed that most of the times the test is done without consent of the women. Based on that they will decide whether a women is pure or impure.
Virginity testing is a traditional process among few regions around the world. This kind of process is mainly done in countries like Afghanistan, Bangladesh, India, Jordan, South Africa, Egypt, Turkey, Sri Lanka, Uganda and many more. There are various reasons to even follow it such as to determine the transformation of sexually transmitted diseases (STDs), and in a few countries, it is the barrier to join the army of that country and many more.
REVIEW OF SCIENTIFIC EVIDENCE
The two most common methods for testing virginity are:
- Examination of hymen to know whether it is present or not;
- Positioning of two figures into vagina (“Two-Finger Test”).
Both tests are done to know about the history of women’s sexual intercourse but neither of them is supported by scientific evidence.
In a recent review, it is found that there is no evidence that the hymen can be torn only by vaginal or sexual intercourse. This shows that the sentence “Hymen can be torn only by sexual intercourse” is just a widespread myth but nothing else. Like all other human tissues, hymen and vaginal tissues also can be injured during trauma. The review also says that during a sexual assault or rape a well-trained medial practitioner can perform test only to know the injury of trauma, but not to know the status of virginity.
THE “TWO-FINGER” TEST
The practice of “Two-Finger” test to done by inserting two fingers into vagina to know the laxity of it, which helps to know about previous sexual intercourse history. “The vagina is a dynamic muscular canal that varies widely in size and shape, depending on the individual, pubertal or developmental stage, physical position and various hormonal factors such as sexual arousal and stress”.
At the end of all these the review says that there is no scientific evidence to prove the history of a woman’s sexual intercourse.
VIRGINITY TEST VIOLATES HUMAN RIGHTS
In various human rights meeting the conference has decided to stop discrimination based on the virginity of women so here are the following statements from various conferences:
- “. . . with a view to achieving the elimination of prejudices and customary . . . practices which are based on the idea of inferiority or the superiority of either of the sexes or onstereotyped roles for men and women”.
- “Eliminating all practices that discriminate against women; assisting women to establish and realize their rights, including those that relate toreproductive and sexual health”.
- “. . . take all appropriate measures to eliminate harmful, medically unnecessary or coercive medical interventions . . . and ensure that all women are fully informed of theiroptions, including likely benefits and potential sideeffects, by properly trained personnel”.
The Specific rights that are violated by virginity testing are mentioned below:
- The right to be protected from discrimination based on sex.
- The right to life.
- The rights to privacy and physical integrity.
- The right to be free from torture or cruel, inhuman or degrading treatment or punishment.
- The right to the highest attainable standard of health.
- The rights of the child.
VIRGINITY TEST AND PRIVACY BREACH
“Gradually the scope of legal rights broadened; and now the right to life has come to mean the right to enjoy life – the right to be let alone”
ARTICLE 21 OF THE INDIAN CONSTITUTION
Right to privacy is the first thing we need to know and according to Black’s Law Dictionary, it means “right to be let alone; the right of a person to be free from unwarranted publicity; and the right to live without unwarranted interference by the public in matters with which the public is not necessarily concerned”. According to the Indian constitution right to privacy comes under article 21 of the Constitution and it defines privacy as “Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law”.
Before the case of “Maneka Gandhi vs Union Of India”, Article 21 of the Indian Constitution has given the right to life and personal liberty to the citizens only against the arbitrary actions of the executive and not from legislative actions and the state could interfere with the liberty of the people if the actions are considered valid by the law. But after this case, Article 12 provides liberty not only against the executive but also against the legislative actions.
VIRGINITY TEST VIOLATES RIGHT TO PRIVACY
Every person has a secret and they don’t want to share it with anyone because of any reason. In the same way, a woman doesn’t want to share her past relationship / sexual intercourse with anyone because she doesn’t want to get judged by others. As people judge a women based on their virginity so that could be the reason or any other so she may want to have it private. If someone knows her privacy without her consent or forcefully than that will be considered as breach of privacy. Also, that could even disturb her mind because if she is found to be not a virgin before the marriage then society will not accept her as pure woman so that could even result in many other consequences.
Even the latest research about hymen says that there is no scientific evidence to prove that hymen can be torn only during sexual intercourse. It also says that it can be torn even when they try to do any exercise or any other physical activities or even due to their puberty, hormonal changes and many others. So judging a person on the thing that has scientifically proven evidence could result in mental disturbance and also physical. Because most cases when virginity test is done it is without the consent of the women so that means even that results in physical assault.
“A person can be the proof of his life and personal deprived of his life and personal liberty if two conditions are complied with, first, there must be a law and secondly, there must be a procedure prescribed by that law, provided that the procedure is just fair and reasonable”.
In many cases, the courts have declared that the word life does not mean only subsistence but also it is bounded by freedom, privacy, dignity, and etc… “Privacy is an essential requisite for a meaningful life. The term privacy is nowhere defined in the Constitution and is subject to judicial interpretation, which has made it a fundamental right within Article 21. Privacy includes physical non-interference, bodily integrity, psychological freedom, and confidentiality”.
VIRGINITY TEST VIOLATES ARTICLES 14 AND 15 OF THE INDIAN CONSTITUTION
The virginity test violates Article 14 and Article 15 of the Indian Constitution. Because Article 14 of the Indian Constitution says “Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth”. As virginity test leads to discrimination on the basis of sex so it violates Article 14. Article 15 of the Indian Constitution says “Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth” to allow someone onto the house or public places or punishing or hurting sentiments of someone based on discrimination could violate Article 15 of the Indian Constitution and in some areas based on the virginity people are treated and also there are cases where because the women as lost her virginity before the marriage she is beaten to death and also few murdered. So these are the two article that virginity test violates.
JUDGEMENTS RELATED TO VIRGINITY TEST
In the case of “R. Rajagopal v. State of Tamil Nadu and People’s Union for CivilLiberties v. Union of India”, the court has given its verdict by explaining about privacy as one of the most important in one’s life and has guaranteed it as a fundamental right under article 21 of the Indian constitution. Thus privacy is right to state of non-trespass by anyone without any lawful justification or to be alone. Though there are equal rights to everyone but rights comes into dissension in the case of marriage. But still the law makers have tried their level best to balance both the sides.
Before amendment of criminal law in 2013 only coital imperative against the consent of woman was considered rape. But after the amendment the definition of rape has been redesigned which included all kinds of penetrative abuses are in definition of rape. Therefore even the “Two-Finger Test” is considered to rape, except those are covered under exceptions of the Indian Penal Code’s section 375.
In the case of “Surjit Singh Thind v. KanwaljitKaur” the husband has demanded the virginity test of his wife because she was asking for a divorce on the grounds of him being fruitless. The court has straight away dismissed his request of him and declared that “asking a woman to give her virginity test is a violation of the right to life with dignity and right to privacy under article 21 of the Indian Constitution”.
In the case of “Sr. Sephy v. Union of India on 01 January 2009” the facts say that the virginity test was unnecessary to a nun as it is useless of the facts and also that made people to discuss the nun briefing her private parts in the public. The virginity test has only added to benefit of the statutory protections and SC has acknowledged an interference with right to privacy in the cases of sexual assault after the era of Kharak Singh.
In the case of “State of Karnataka v. Krishnappa” the honourable Supreme Court gave its verdict as “sexual violence apart from being a dehumanizing act is an unlawful intrusion of the Right to Privacy and sanctity of a female”.
In the case of “State of Maharashtra v. Madhukar Narayan Mardikar” The court confined that “”even women of easy virtue are entitled to privacy and no one can invade their privacy”.
VIRGINITY TEST AND RELATED COMMUNAL MEASURES
In a country like India where women are having a very admiring position and are treated as goddesses by the society, but there also is also another side where women are put through discrimination, violence, and cruelty by the society. The virginity test is of the most disgraceful pieces of violence by society. Virginity test is a test done to determine a woman is a virgin or not. The importance of the virginity test is one of the well-established cultures in some societies. But the fact is there is no scientific evidence or clinically proven evidence of the virginity test. Virginity test leads to violation of many human rights. In India, most of the grooms accept only virgin brides because virginity is one of the compulsions in Indian society and is considered as purity, good character, reputation, and many more. There is no virginity test for the boys and also sex before marriage for boys is casual but for girls, it is believed that they are born with a sealed vagina. If in case a bride is failed in virginity test than the consequences need to be faced such as beaten, or fined, or even marriage can be called. If a bride is failed in virginity test it is considered as bringing shame to her family. “These aren’t just violating human rights of the women’s or girls, but in cases of rape can cause additional pain and mimic the original act of sexual violence, leading to re-experience, re-traumatization and re-victimization”. Many women suffer other short term and long term consequences because of this practice such as depression, anxiety, post-traumatic stress and many more. “The concept of ‘virginity’ is a social, cultural, and religious construct – one that reflects gender discrimination against women and girls. This painful, traumatic, and unethical practice should be ended and banned by all social communities”.
The virginity test is violation of basic fundamental right of a person. Practicing virginity test on the basis of culture is a straight assault on the self-respect of the individual. Article 21 of the Indian Constitution gives every individual to live with respect and dignity. Virginity test should not be linked with sexual history of women because there is no proven evidence to show that. Virginity tests should be only conducted on the victims of rape to get justice. There is a great need of women helpline numbers, uniform laws, guidelines, to protest women from virginity testing. We as a society need to understand how a person feels when they get discriminated against on the basis of unreal facts. I would request you all not to discriminate against a person on the basis of unreal facts and that leads to human rights violations as even World Health Organisation (WHO) also declared that there is no evidence that hymen can be broken only by sexual intercourse.
About the publisher:
Definition from Black’s Law Dictionary
INDIAN CONST. art 21
Maneka Gandhi vs. Union of India, 1978 AIR 597, 1978 SCR (2) 621
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Definition from Black’s Law Dictionary
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INDIAN CONST. art 15
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Surjit Singh Thind v. KanwaljitKaur AIR 2003 P H 353.
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