The virginity test conducted on the petitioner was unconstitutional and in violation of her fundamental right to dignity under Article 21 of the Constitution of India.

JUDGMENT

Index to the Judgment

A. Factual Backdrop

B. Maintainability of Petition

i. Preliminary Objections of Respondents

ii. Contentions on behalf of Petitioner

iii. Findings of this Court

C. The Constitutional Validity of Virginity Test conducted upon a Female Accused under Investigation

i. The Case of Petitioner

ii. Submissions on behalf of Respondents

iii. Analysis and Findings

a. Indian Precedents

b. International Perspective on Virginity Test

c. Whether "Virginity Test" is covered under Section 53 of Code of Criminal Procedure, 1973

d. Custodial Dignity vs. Constitutional Validity of Virginity Test

e. Virginity Test: Victim vs. Accused

D. Conclusion and Directions

Swarana Kanta Sharma, J. This Court vide this judgment examines the following 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. The petitioner before this Court, by way of present petition, has sought the following prayers:

"a) issue a declaration that the conduct of `Virginity test' on the Petitioner by the Respondent-CBI is unconstitutional and against the tenets of Fundamental Rights.

b) Punish the errant officials of the CBI who have 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.

c) Direct the respondents to pay exemplary compensation to the petitioner for the mental agony/torture/humiliation undergone by the petitioner for having subjected her to undergo Virginity test'.

d) Quash the order dated 6/8.5.2009 issued by the fourth respondent."

e) Pass such other orders of further orders, which this Hon'ble Court may deem fit and proper in the facts and circumstances of the Petition..."

A. FACTUAL BACKDROP

3. An inmate of a Hostel in Kottayam, Kerala was found dead in the well on 27.03.1992 and the local police had registered the crime No. 187/92 as 'unnatural death' on the basis of the statement given by `X'. Though the Central Bureau of Investigation had entertained reasonable doubt as to whether death of deceased was suicide or homicide as evident from the final report submitted before the Court on 29.11.1996, the Kochi unit of the very same investigating agency took a different stand in concluding that the death was homicide. The investigating agency arrayed the petitioner as the third accused with two other co-accused persons.

4. The petitioner was arrested on 19.11.2008 and was produced before the Court of Chief Judicial Magistrate, Ernakulam which remanded the petitioner to custody of Central Bureau of Investigation for further investigation.

5. On 25.11.2008 by afternoon, the petitioner was taken to Alapuzha Medical College without disclosing the destination or the purpose where two lady doctors from the Forensic Science Department and one Gynecologist of the Govt. Medical College were present. The petitioner was taken to a room and was asked to sign a document and upon her enquiring about the matter, she was told that it was the consent letter for a test. It is the case of petitioner that her consent was obtained forcefully by officers of Central Bureau of Investigation and the doctors therein under duress and coercion by subjecting her to severe mental torture. Thereafter petitioner was subjected to `Virginity test' and 'swab test' and about one hour thereafter she was taken back to the guest house.

6. It was later revealed that to the utter dismay of the Central Bureau of Investigation, the tests conducted by the doctors proved that the hymen of the petitioner was intact. As the result of the virginity test conducted on the petitioner proved counter-productive, officials of Central Bureau of Investigation with a view to save their face, fabricated a new story to the effect that the Petitioner has undergone surgery for suturing of hymen or "hymenoplasty".

7. On 28.11.2008 and the days that followed, the print and electronic med