NEW DELHI: The Delhi High Court on Tuesday held 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 the right to dignity.
The judgment came on a petition moved by Sister Sephy, who approached the high court against the 'virginity test' conducted on her on November 19, 2008, by the Central Bureau of Investigation (CBI) as part of their investigation into the 1992 murder case of Sister Abhaya, who was found dead in a convent in Kottayam, Kerala.
In the order, Justice Swarana Kanta Sharma, said, "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."
It further said, "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 the context of a defamation case."
The Delhi HC clarified that the issue before it was only regarding the infringement of the fundamental rights of the petitioner and will have no bearing on the criminal case pending before the courts concerned.
"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 the petitioner is pending before the High Court of Kerala, which is a continuation of Trial, the National Human Rights Commission ..will consider afresh the representation filed by the petitioner regarding custodial torture or compensation once the criminal trial against the petitioner concludes," as per the order.
In its objection, the CBI had said, Sister Sephy's appeal against conviction in the murder case is pending before the High Court of Kerala and the trial court proceedings are still undergoing.
Last year, the Kerala High Court suspended the execution of the life imprisonment sentence of Sister Sephy along with co-accused Fr Thomas Kottoor, who were convicted in the murder case.
Prior to that, the CBI Special Court, Thiruvananthapuram, had found both of them guilty of murder and sentenced them to life in prison.