The Wire Staff 
New Delhi: The Delhi high court on Tuesday (February 7) ruled that running a ‘virginity test’ on a female accused or detainee is unconstitutional and inhuman, and a violation of Article 21 of the Constitution.
Not only does such a test interfere with a woman’s bodily integrity, the court said, it can also have a longstanding psychological impact on the woman.
Justice Swarana Kanta Sharma was hearing a writ petition filed by Sister Sephy, who was convicted in the Sister Abhaya murder case, against a virginity test conducted on her by the Central Bureau of Investigation in 1992.
“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,” Justice Sharma said, according to Bar and Bench.
“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,” she continued, in response to the argument that such a test may have different connotations when conducted on a victim of sexual violence and on an accused in a criminal case.
“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 has been held in several judgments of the Hon’ble top court, does not have a medical standing,” the court observed.
Justice Sharma also ordered that the information about the test being declared unconstitutional should be circulated to all investigating agencies through the Ministry of Home Affairs and Ministry of Health and Family Welfare. The Delhi Judicial Academy should also include this information in its curriculum and in the workshops for investigating officers, prosecutors and other stakeholders, she added.
In 2008, after her arrest in the case, Sephy accused the CBI of having conducted a virginity test on her without her consent. She filed the writ petition in 2009.
In 2020, a special CBI court had found Sister Sephy guilty of the 1992 murder and sentenced her to life imprisonment. The court, LiveLaw reported, reportedly relied on the virginity test to come to this decision, as that was said to prove that the murder was committed to cover up a relationship between Sister Sephy and another accused, Father Kottoor.
The CBI courts’s sentence currently remains suspended by the Kerala high court, while an appeal is heard.
On whether Sister Sephy will be compensated, the Delhi high court said that the National Human Rights Commission should consider the nun’s representations on custodial torture afresh.