Supreme Court’s Decision on Sakshi v. Union of India

Brief: The Apex Court entertained a PIL regarding expansion of interpretation of ‘rape’ under Section 375 IPC and expand procedural application under Sections 273 327(2) of CrPC. Although it did not grant the declaratory relief on the substantive provisions, it provided directive on procedural aspects related to instances of child abuse.  

Case Description 

Facts  

Petitioner Sakshi, an NGO focused on supporting women (especially victims of sexual abuse, violence or harassment), filed a Public Interest Litigation (PIL) seeking declaratory relief to induce broader interpretation of the term ‘rape’ under Section 375 of IPC.  

The Respondents in the case were Union of India, the Ministry of Law and Justice and the New Delhi Commission of Police.  

Issues 

• Whether the definition of ‘rape’ under Section 375/376 should include all forms of non-consensual penetration? 

• Whether Section 375 can be altered through judicial interpretation to include all forms of non-consensual penetration? 

Laws Involved  

• Sections 354, 375, 376, and 377 of Indian Penal Code, 1860 (“IPC”) 

• Sections 273 and 327(2) of Code of Criminal Procedure, 1973 (“CrPC”) 

• Articles 14 and 15 of Constitution of India, 1950 

• UN Convention on the Elimination of Discrimination Against Women, 1979 

• UN Rights of the Child Convention, 1989  

Also Read: Can One File FIR under Section 354A IPC? 

Petitioner’s Contentions  

1. “Sexual Intercourse” is not defined in Section 375 of IPC. Further, there is no provided explanation that limits its interpretation to solely mean ‘penile/vaginal’.  

2. Contemporary understanding of ‘rape’ is that it is an experience of humiliation, degradation and violation. Narrow interpretation that limits the meaning to ‘penile/vaginal’ reaffirms the view the rapists view rape as sex and not violence.  

3. Narrow interpretation leads to treatment of other forms of penetration (penile/vaginal, penile/oral, penile/anal, finger/vaginal, finger/anal and object/vaginal) as lesser in severity although it impacts the victim with similar trauma. Respondent authorities and their agencies treat other forms of penetration as offences under Sections 354 and 377. 

4. Arbitrary and narrow interpretation of Sections 375 and 376 by Respondent authorities and their agents render redress available under Section 376(2) useless.   

5. Respondent 1 is signatory to, and has ratified, International Conventions like UN Rights of the Child Convention and UN Convention on the Elimination of Discrimination Against Women. The expectation that commitments made under the conventions will be adhered to is reasonable. Yet, the interpretation of the concerned Section by Respondent authorities and their agents stands in complete violation of the international commitments upheld by this Hon’ble Court. 

6. Section 377 is intended to punish private sexual acts that are perceived as immoral. Respondent authorities and their agents have strained the language of the Section to deal with cases of severe sexual violence as offense of immoral nature.  

7. Article 15(3) of Indian Constitution allows State to make special provision for women and children. Special provision necessarily includes ‘adequate’ provisions. 

8. Section 375 should be given purposive interpretation considering the present situation where child sexual abuse is rampantly growing. 

9. Petitioner’s counsel emphasizes on the need to enlarge the meaning of “rape” with references to International Cases where other countries have begun reshaping their traditional ideas. 

10. Petitioner also suggested incorporation of the following as special provisions for cases of child sexual abuse: 

1. Use of videotaped interview of the Aggrieved Child’s statement by Judge (in presence of child-support person) 

2. Aggrieved Child should be allowed to testify via close-circuit television or from behind a screen to obtain candid accounts of acts. 

3. Cross-examination of minor to be conducted through the Judge based on written questions submitted by the Defence. 

4. Sufficient breaks should be given to the Aggrieved Child, if and when required, whenever the child is required to give testimony.  

Contentions in Respondent’s Counter affidavit 

1. Other forms of penetration such as penile/vaginal, penile/oral, penile/anal, finger/vaginal, finger/anal and object/vaginal are unnatural and therefore dealt under Section 377.  

2. Punishment for Section 377 is imprisonment for life or a term of either description that can extend up to 10 years and also fine. Hence, it is incorrect to say that this Section treats other forms of penetration as being of a lesser severity than Section 375.  

3. Child abuse of any nature, besides penile penetration, is unnatural and thus dealt under Section 377. 

4. Criminal Law (Amendment) Act, 1983 made several changes in Sections 375 and 376. It added new Sections 376 A, 376 B, 376 C and 376 D in IPC. These sections are special/adequate provisions added for women and children.  

5. Ratified international treaties are accounted for, as framing guidelines, in enforcement of fundamental rights. But they are only considered in the absence of municipal laws. If municipal laws already exist, subsequent ratification of international treaties will not render the inconsistent existing laws as ultra vires. [relied on Vishaka v. State of Rajasthan [(1997) 6 SCC 241] and Lakshmi Kant Pandey v. Union of India [(1984) 2 SCC 244]] 

6. Further, it is the prerogative of the legislature to modify and align municipal laws with treaty obligations. Therefore, the current matter requires consideration of the State and cannot be enforced through a court of law.  

Court’s Analysis 

1. With Regards to Substantive Provision of Section 375 IPC 

• Petitioner wants to widen the definition of ‘rape’ in Section 375 IPC and add other offences with the intent that such acts can also be penalized under Section 376. This has neither been considered nor accepted by any court in India.  

• The dictionary meaning of the term “Sexual Intercourse” refers to heterosexual intercourse where there is penile/vaginal penetration. 

• Intention of the legislature is gathered from the language used. Constructive interpretation cannot be used to read words into an Act. It is wrong and dangerous to proceed with word substitution in a legislation, especially in an offence enacting statute, for such statutes should be strictly construed.  

• Criminal law must be absolutely certain and clear. India’s legal fraternity and law enforcement agencies have the current understanding of Section 375 ingrained into their brain. The cases are registered by police officers, argued by advocates and judged by judges accordingly. Any alteration in the provision, through judicial interpretation, in the absence of ambiguity in the provision, will create chaos and is not in the society’s larger interest.  

• According to the doctrine of stare decisis, laws that govern a citizenry must be fixed, definite and known. Therefore, laws clearly announced and established by a court of last resort should be followed.  

• Through a series of judicial precedents, Indian courts has established the meaning of Section 375 IPC and the same is to be adhered to.  

2. With Regards to Procedural Provisions Sections 273 & 327(2) 

• Deposition of Aggrieved Persons, in offences under Section 354 and 377 IPC, at times can be disturbing to them. A free atmosphere is a must for an Aggrieved Person’s deposition to bring out the truth.  

• Section 273 CrPC requires evidence to be taken in presence of the Accused. However, it does not indicate that Accused should have full view of the Aggrieved Person or witnesses. As held in State of Maharashtra v. Dr. Praful B. Desai [(2003) 4 SCC 601], evidence can be recorded through video conferencing.  

• Rules of procedure are meant to advance the cause of justice. Unlike the alteration of substantive penal provisions, Courts have permission to expand or enlarge procedural provisions for the sake of justice. 

• Mere sight of Accused may induce fear or shock in Aggrieved Person or witnesses. Therefore, there should not be any objection to Petitioner’s plea regarding changes in procedural provisions.  

Also Read: Supreme Court’s Reaction to Rajasthan High Court’s POCSO Decision 

Conclusion 

The Hon’ble Supreme Court held and directed the following: 

1. It is not in the larger interest of the State or its people to alter the definition of ‘rape’ under Section 375 IPC through judicial interpretation.  

2. Section 327 (2) CrPC should apply in inquiry or trial concerning Sections 354 and 377 IPC.  

3. Following arrangements to be made in holding trial of child sexual abuse or rape: 

1. A screen or similar arrangement to be made between Aggrieved Person or witness and the Accused to ensure the latter’s body or face is not visible to the former.  

2. Question on behalf of the Accused for cross-examination should be given in writing to the Presiding Officer of the Court who may direct them to the Aggrieved Person or witnesses in a non-embarrassing language.  

3. Person aggrieved of child abuse or rape should be allowed to take sufficient breaks whenever required amidst their testimony in court. 

(The directions encapsulated in point 3 are in addition to directions given in State of Punjab v. Gurmit Singh [(1996) 2 SCC 384]).  

Authored by Ayush Bardhan, Legal Associate