Case No: W.P. No. 10663/2013
High Court Division of the Supreme Court of Bangladesh
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 Mahila Parishad, BRAC, Manusher Jonno Foundation, Naripokkho) and two medical experts, Dr. Ruchira Tabassum Naved 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.
On 10.10.2013 the High Court Division, comprising of Mr. Justice Mirza Hussain Haider and Mr. Justice Khurshid Alam Sarkar issued a Rule asking the Secretary, Ministry of Health and Family Welfare, Government of Bangladesh, 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 allegedly 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 Nirjaton 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
On 7 August 2016, a Division Bench of the Hon’ble High Court Division comprising Mr. Justice Gobinda Chandra Tagore and Mr. Justice Abu Taher Md. Saifur Rahman allowing the petitioner’s application passed an order that this 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.
The case is pending for hearing before the High Court. The Ministry of Health has convened a Committee in compliance with the High Court’s order and has requested BLAST to provide support in making submissions on the Guidelines.