Supreme Court of India
SAKSHIversusUNION OF INDIA
- Citation
- 2004 INSC 383
- Decided
- 26 May 2004
- Disposal
- Dismissed
- Bench
- S RAJENDRA BABU
Holding
Section 375 IPC's definition of rape is limited to heterosexual penile‑vaginal penetration and cannot be expanded by judicial interpretation; any broader construction would violate Article 20(1).
Summary
The Supreme Court considered a public‑interest writ petition seeking a declaration that the term "sexual intercourse" in Section 375 of the Indian Penal Code should be interpreted to include all forms of penetration, thereby expanding the definition of rape. The petition also sought procedural directions for recording the testimony of child victims. The Court held that Section 375 IPC, drafted in 1860, has a settled meaning limited to heterosexual penile‑vaginal penetration and cannot be broadened by judicial interpretation, as doing so would breach Article 20(1) of the Constitution. Consequently, the Court rejected the petition’s request to enlarge the definition of rape. However, the Court issued procedural directions under Sections 273 and 327 of the Cr.P.C. to protect child and rape victims during trial, such as allowing screens, written cross‑examination, and breaks. The special leave petitions were dismissed, leaving the existing statutory framework unchanged.
Issues considered
- Whether the term "rape" in Section 375 IPC should be expanded to include all forms of forcible penetration (penile‑oral, penile‑anal, finger, object, etc.).
- Whether non‑consensual penetration of a child below 12 years should be prosecuted under Section 375/376 rather than Sections 354 or 377.
- Whether a purposive/teleological interpretation of Sections 375/376 is required to meet constitutional guarantees under Articles 14 and 21.
- Whether the narrow interpretation of "penetration" defeats the purpose of Section 376(2)(f) concerning child rape.
- Whether procedural measures (screen, video recording, written cross‑examination, breaks) should be permitted under Sections 273 and 327 Cr.P.C. for child/rape victims.
Legislation cited
- Code of Criminal Procedure, 1973s. 273, s. 327
- Constitution of Indias. 14, s. 15(3), s. 20, s. 21
- Criminal Law (Amendment) Act, 1983s. 376A, s. 376B, s. 376C, s. 376D
- Indian Penal Code, 1860s. 277, s. 354, s. 375, s. 376
Subjects
rapesexual assaultstatutory interpretationSection 375 IPCchild sexual abuseevidence recordingprocedural lawArticle 20Article 14Article 21stare decisis
Judgment
SAKS HI A
v.
UNION OF INDIA
MAY 26, 2004
B
[RAJENDRA BABU, CJ. AND G.P. MATHUR, J.]
Penal Code, 1860: Sections 354, 375, 376 & 277/Code of Criminal
Procedure, 1973; Sections 273 & 327
Sexual violence against women and children-Writ Petition for C
enlargement ofscope ofSections 3751376 !PC so as to include in it certain
acts of sexual abuse against minor children/women-Held: A statute
enacting an offence and imposing a penalty therefor has to be strictly
construed-An enactment is a penal provision that by itself is a reason for
not ascribing to it a broader meaning than it would ordinarily bear. It is D
not appropriate to alter the definition ofrape by way ofjudicial interpretation
when there appears to be no ambiguity in it-Prosecution of an accused
for an offence under Section 376 !PC on radically enlarged meaning of
Section 375 !PC would be violative of Article 20(1) of the Constitution.
E
Recording of evidence of child victim of sexual abuse/witnesses-
Manner ofrecording-Held: Rules ofprocedure are meant to advance and
not to obstruct the cause of justice-It is permissible for the Court to
enlarge the meaning of such provisions in order to elicit the truth and
render justice-While recording the evidence of such victim/witness to F
avoid inducement of extreme fear/trauma in her/his mind from mere sight
ofthe accused, a dividing screen could be put in between the victim/witness
and the accused-Sufficient break should be given as and when required-
Provisions of Section 327(2) should also be applied in an enquiry trial of
offences under Sections 354 & 357 !PC-Directions issued-Constitution
of India, 1950-Articles 14, 20 & 21. G
Legislation :
Increase in child abuse cases in alarming proportion-Need for
legislation-8tressed. H
723
724 SUPREME COl.iRT REPORTS [2004] SUPP. 2 S.C.R.
A Doctrines :
Doctrine of "stare decisis "-Meaning and applicability of
Words and Phrases :
B
'sexual intercourse'-Meaning of in the context of Section 375 !PC.
The main question which arose for consideration in the writ
petition was as to whether by a process of judicial interpretation the
provisions of Section 375 IPC could be so altered so as to include all
c forms of penetration such as penile/vaginal penetration, penile/oral
penetration, penile/anal penetration, finger/vagina and finger/anal
penetration and object/vaginal penetration within its ambit.
The petition was considered by the Court when it directed the
D petitioner to formulate issues and legal propositions for consideration
by the Court. Accordingly, petitioner has formulated the following
issues :
(a) whether the term "rape" should be understood to include not
E only forcible penile/vaginal penetration but all forms of forcible
penetration including penile/oral penetration, penile/anal penetration,
object or finger/vaginal and object or finger/anal penetration.
(b) That all forms of non-consensual penetration should not be
F subsumed under Section 375 of the Indian Penal Code and the same
should not be limited to penile vaginal penetration only.
(c) That in view of the widespread prevalence of child sexual
abuse and bearing in mind the provisions of the Criminal law
(Amendment) Act, 1983 which specifically inserted Section 376(2)(f)
G envisaging the offence of"rape" of a girl child howsoever young below
12 years of age, whether the expression "sexual intercourse" as
contained in Section 375 of the Indian Penal Code should
correspondingly include all forms of penetration; and whether the
expression "penetration" should not be so clarified in the Explanation
H to Section 375 of the Indian Penal Code.
SAKSHI v. U.0.I. 725
(d) That a restrictive interpretation of "penetration" in the A
Explanation to Section 375 (rape) defeats the very purpose and intent
of the provisions for punishment for rape under Section 376(2)(t).
(e) That as to whether penetration abuse of a child below the age
of 12 should no longer be arbitrarily classified according to the 'type' B
of penetration (ignoring the 'impact' on such child) either as an
"unnatural offence" under Section 377 IPC or otherwise as "outraging
the modesty of a woman" under Section~ IPC.
(t) That as to whether non-consensual penetration of a child under
the age of 12 should continue to be considered as offences under Section C
377 ("Unnatural Offences") on par with certain forms of consensual
penetration (such as consensual homosexual sex) where a consenting
party could be held liable as an abettor or otherwise.
(g) That as to whether a purposive/teleological interpretation of D
"rape" under Section 375/376 requires taking into account the historical
disadvantage faced by women and children to show that the existing
restrictive interpretation worsens that disadvantage and for that
reason fails the test of equality within the meaning of Article 14 of the
Constitution of India. E
(h) That as to whether the present narrow interpretation treating
only cases of penile/vaginal penetration as rape, adversely affects and
sexual integrity and autonomy of women and children in violation of
Article 21 of the Constitution of India.
F
The Court referred the matter to the Law Commission of India;
the Commission had considered some aspects of the matter in its 156th
Report and forwarded the same for consideration of this Court.
Petitioner contented that Section 375 IPC is required to be G
interpreted in the light of the current scenario of crime on child and
woman; that 'sexual intercourse' in Section 375 should be interpreted
to mean all kinds of sexual penetration, so as to include all kinds of
child abuse within its ambit and conviction therefor could be possible
under Section 376 IPC, in support thereto pt:titioner has referred to H
726 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.
A United Nations Convention on the Elimination of All Forms of
Discrimination Against Women, 1979.
On behalf of the respondents, it was submitted that when laws on
the subject are already existing subsequent ratification of treaties
B would not render existing law ultra vires the treaties in case of
inconsistency. However, the State could modify the law in accordance
with Treaty obligations; that the decision of the International Tribunal
for the crimes committed in a foreign territory could not be used for
interpretation of Sections 354 and 375 IPC; that no writ of mandamus
C could be issued to the Parliament to amend any law or to bring it in
accordance with treaty obligation; that in order to make accused guilty
of rape, penile penetration is an essential ingredient.
Disposing of the matter, the Court
D HELD : 1.1. Section 375 IPC uses the expression "sexual
intercourse" but the said expression has not been defined. The dictionary
meaning of the word "sexual intercourse" is hetrosexual intercourse
involving penetration of the vagina by the penis. (745-H; 746-Al
E 1.2. It is well settled principle that the intention of the Legislature
primarily has to be gathered from the language used, as a consequence
thereof a construction which requires for i~ support, addition or
substitution of words or which results in rejection of words as
meaningless should be avoided. It is contrary to all rules of construction
F to read words into an Act unless it is absolutely necessary to do so.
Similarly it is wrong and dangerous to proceed by substituting some
other words for words of the statute. It is equally well settled that a
statute enacting an offence or imposing a penalty is strictly construed.
The fact that on enactment is a penal p1·ovision is in itself a reason for
not ascribing to phrases used in it a meaning broader than that they
G would ordinarily bear. (746-E-F-Gl
Principles of Statutory Interpretation by Justice G.P. Singh, Ninth
Edition, pp. 58 and 751, referred to.
H 1.3. Sections 354, 375 and 377 IPC have come up for consideration
SAK.SHI v. U.0.I. 727
before the superior courts of the country on innumerable occasions in A
a period of almost one and a half century. Only sexual intercourse,
namely hetrosexual intercourse involving penetration of the vagina by
the pe.nis coupled with the explanation that penetration is sufficient to
constitute the sexual intercourse necessary for the offence of rape, has
been held to come within the purview of Section 375 IPC. Prosecution B
of an accused for an offence under Section 376 WC on radically
enlarged meaning of Section 375 IPC may violate the guarantee
enshrined in Article 20(1) of the Constitution. [746-G-H; 747-A-B)
Regina v. Burstow and Regina v. Ireland, (1997) 4 All ER 74; The C
National Coalition for Gay and Lesbian Equality & Ors. v. The Minister
of Home Affairs and Ors., CCT 10/99 and R. v. R, (1991) 4 All ER 481,
referred to.
1.4. The entire legal fraternity of India has the definition as D
contained in Section 375 IPC engrained in their mind and the cases are
decided on the said basis. The first and foremost requirement in
criminal law is that it should be absolutely certain and clear. Therefore,
an exercise to alter the definition of rape, as contained in Section 375
IPC, by a process of judicial interpretation, and that too when there E
is no ambiguity in the provisions of the enactment, is bound to result
in good deal of chaos and confusion, and will not be in the interest of
society at large. (748-E-F)
2. Stare decisis is a well known doctrine in legal jurisprudence.
The doctrine of stare decisis, meaning to stand by decided cases, rests F
upon the principle that law by which men are governed should be fix~d,
definite and known, and that, when the law is declared by Court of
competent jurisdiction authorized to construe it, such declaration, in
absence of palpable mistake or error, is itself an evidence of the law
until changed by competent authority. [748-G-H) G
Mishri Lal v. Dhirendra Nath, (1999) 4 SCC 11, referred to.
Button v. Director of Public Prosecution, (1966) AC 591, referred
to. H
728 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.
A Hals bury 's Laws of England, 2nd Edition, referred to.
3. There is absolutely no doubt or confusion regarding the
interpretation of provisions of Section 375 IPC and the law is very well
settled. The inquiry thereofrelate only to the factual aspect of the matter
which in turn depends upon the evidence available on the record and not
B on the legal aspect. Thus, giving a wider meaning to Section 375 IPC will
lead to a serious confusion in the minds of prosecuting agency and the
Courts which instead of achieving the object of expeditiously bringing
a criminal to book may unnecessarily prolong the legal proceedings and
would have an adverse impact on the society as a whole. Hence, it will
C not be in the larger interest of the State or the people to alter the definition
of "rape" as contained in Section 375 IPC by a process of judicial
interpretation. (752-G-H; 753-A)
4.1. There is a major difference between substantive provisions
D defining crimes and providing punishment for the same and procedural
enactment laying down the procedure of trial of such offences. Rules
of procedure are hand-maiden of justice and are meant to advance and
not to obstruct the cause of justice. Hence, it is permissible for the
Court to expand or enlarge the meanings of such provisions in order
E to elicit the truth and do justice with the parties. (756-D-E)
4.2. The whole purpose of inquiry before a Court is to elicit the
truth. Therefore, it is absolutely necessary that the victim or the
witnesses are able to depose about the entire incident in a free
atmosphere without any embarrassment. Section 273 Cr.P.C. merely
F stipulates evidence to be taken in the presence of the accused. The
Section, however, does not say that the evidence should be recorded
in such a manner that the accused should have full view of the victim
or the witnesses. In a recent decision of this Court, recording of
evidence by way of video conferencing vis-a-vis Section 273 Cr.P.C. has
G been held to be permissible. (756-8-CJ
State of Maharashtra v. Dr. Praful B. Desai, (2003) 4 SCC 601,
referred to.
4.3. The mere sight of the accused may induce an element of
H extreme fear in the mind of the victim or the witnesses or can put them
SAKSHI v. U.O.I. 729
in is state of shock. In such a situation he or she may not be able to A
give full details of the incident which may result in miscarriage of
justice. There, a screen or some such arrangement can be made where
the victim IOr witnesses do not have to undergo the trauma of seeing
the body 11r the face of the accused. Often the questions put in cross-
examination are purposely d¢signed to embarrass or confuse the B
victims of rape and child abuse. The questions to be put by the accused
in cross-examination should b«i given in writing to the Presiding Officer
of the Court, who may put the same to the victim or witnesses in a
language which is not embarrassing. Whenever a child or victim or
rape is required to give testimony, sufficient breaks should be given
as and when required. The provisions of sub-section (2) of Section 327 C
Cr.P.C. should also apply in inquiry or trial of offences under Sections
354 and 377 IPC. (756-F-G-H; 757-AI
State of Punjab v. Gurmit Singh, (1996) 2 SCC 384, referred to.
D
(The Court expressed its hope that Parliament would give serious
attention to the points highlighted by the petitioner and make
appropriate legislation with all the promptness which it deserves.)
CIVIL APPELLATE JURISDICTION : Writ Petition (Cr!.) No. 33 E
of 1997.
Under Article 32 of the Constitution of India.
WITH
F
SLP (Cr!.) Nos. 1672-1673/2000.
R.N. Trivedi, Additional SoliciterGeneral, F.S. Nariman, (A.C.)(N.P.),
·Ms. Naina Kapoor, Ms. Meenakshi Arora, Ms. Hona Chettri, Tara Chandra
Sharma, P. Parmeswaran, Sujit Kumar Bhattacharya, Goodwill Indeevar, G
Ms. Shashi Kiran, Ms. Anil Katiyar, D.N. Goburdhan, Ms. Pinky Anand,
Ms. Geeta Luthra, Syed Ali Ahmad, Syed Tanweer Ahmad, G.G. Upadhyay
and R.D. Upadhyay for the appearing parties.
The Judgment of the Court was delivered by H
730 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.
A G.P. MATHUR, J. : I. This writ petition under Article 32 of the
Constitution has been filed by way Of public interest litigation by Sakshi,
which is an organisation to provide legal, medical, residential, psychological
or any other help, assistance or charitable support for women, in
particular those who are victims of any kind of sexual abuse and/or
B harassment, violence or any kind of atrocity or violation and is a violence
intervention centre. The respondents arrayed in the writ petition are (I)
Union of India; (2) Ministry of Law and Justice; and (3) Commissioner
of Police, New Delhi. The main reliefs claimed in the writ petition are as
under :
C (A) Issue a writ in the nature of a declaration or any other appropriate
writ or direction declaring inter alia that "se::ual intercourse" as
contained in section 375 of the Indian Penal Code shall include all
forms of penetration such as penile/vaginal penetration, penile/oral
penetration, penile/anal penetration finger/vaginal and finger/anal
D penetration and object/vaginal penetration;
(B) Consequently, issue a writ, order or direction in the nature of a
direction to the respondents and its servants and agents to register all
such cases found to be truly on investigation, offences falling within
E the broadened interpretation of "sexual intercourse" set out in prayer
(A) aforesaid as offences under Section 375, 376 and 376A to 3760
of the Indian Penal Code, 1860;
(C) Issue such other writ, order or direction as this Hon 'ble Court may
deem appropriate in the present facts and circumstances.
F
The petition is thus restricted to a declaratory relief and consequential
directions.
2. It is set out in the writ petition that the petitioner has noticed with
G growing concern the dramatic increase of violence, in particular sexual
violence against women and children as well as the implementation of the
provisions of Indian Penal Code namely Sections 377, 375/376 and 354
by the respondent authorities. The existing trend of the respondent
authorities has been to treat sexual violence, other than penile/vaginal
H penetration, as lesser offences falling under either Section 377 or 354 of
SAKSHI v. U.O.I. (G.P. MA1HUR, J.] 731
the IPC and not as a sexual offence under Section 375/376 IPC. It has been A
found that offences such as sexual abuse of minor children and women by
penetration other than penile/vaginal penetration, which would take any
other form and could also be through use of objects whose impact on the
victims is in no manner less than the trauma of penile/vaginal penetration
as traditionally understood under Section 375/376, have been treated as B
offences falling under Section 354 of the IPC as outraging the modesty of
a women or under Section 377 IPC as unnatural offences.
3. The petitioner through the present petition contends that the narrow
understanding and application of rape under Section 375/376 IPC only to C
the cases of penile/vaginal penetration runs contrary to the existing
contemporary understanding of rape as an intent to humiliate, violate and
degrade a woman or child sexually and, therefore, adversely affects the
sexual integrity and autonomy of women and children in violation of
Article 21 of the Constitution.
D
4. The petitioner submits that a plain reading of Section 375 would
make it apparent that the term "sexual intercourse" has not been defined
and is, therefore, subject to and is capable of judicial interpretation. Further
the explanation to Section 375 IPC does not in any way limit the term E
penetration to mean penile/vaginal penetration. The definition of the term
rape as contained in the Code is extremely wide and takes within its sweep
various forms of sexual offenses. Limiting the understanding of "rape" to
abuse by penile/vaginal penetration only, runs contrary to the contemporary
understanding of sexual abuse law and denies majority of women and
children access to adequate redress iu violation of Article 14 and 21 of the F
Constitution. Statistics and figures indicate that sexu;:! ~huse of children,
particularly minor girl children by means and manner other than penile/
vaginal penetration is common and may take the form of penile/anal
penetration, penile/oral penetration, finger/vaginal penetration or object/
vaginal penetration. It is submitted that by treating such forms of abuse G
as offences falling under Section 354 IPC or 377 IPC, the very intent of
the amendment of Section 376 !PC by incorporating sub-section 2(f)
therein is defeated. The said interpretation is also contrary to the
contemporary understanding of sexual abuse and violence all over the
world. H
732 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.
A 5. The petitioner submits that there has for some time now been a
growing body of feminist legal theory and jurisprudence which has clearly
established rape as an experience of humiliation, degradation and violation
rather than an outdated notion of penile/vaginal penetration. Restricting an
understanding of rape .in terms sought to be done by the respondent
B authorities and its agents reaffirms the view that rapists treat rape as sex
and not violence and thereby condone such behaviour especially when it
comes to sexuai abuse of children.
6. In this regard, reference is invited to the observations of a renowned
C expert on the issue of sexual abuse :
"...... in rape ....... the intent is not merely to "take", but to
humiliate and degrade ....... Sexual assault in our day and age is
hardly restricted to forced genital copulation, nor is it exclusively
a male-on-female offence. Tradition and biologic opportunity
D have rendered vaginal rape a particular political crime with a
particular political history, but the invasion may occur through the
month or the rectum as well. And while the penis may remain the
rapist's favourite weapon, his prime instrument of vengeance
.......... it is not in fact his only tool. Sticks, bottles and even fingers
E are often substituted for the· "natural" thing. And as men may
invade women through other orifices, so too, do they invade other
men. Who is to say that the sexual humiliation suffered through
forced oral or rectal penetration as a lesser violation of the
personal, private inner space, a lesser injury to mind, spirit lnd
sense of self?" (Susan Brownmiller, Against Our Will 1986).
F
7. The petitioner further submits that the respondent authorities and
their agents have failed to take into consideration the legislative purpose
of Section 377 IPC. Reference has also been made to The Law Commission
of India Report (No. 42) of 1971 pp. 281. While considering whether or
G not to retain Section 377 !PC, the Commission found as under :
"There are, however, a few sound reasons for retaining the
existing law in India. First, it cannot be disputed that homosexual
acts and tendencies on the part of one spouse may affect the
H married life and happiness of the other spouse, and from this point
SAKSHI v. U.0.1. [G.P. MATHUR, J.] 733
of view, making the acts punishable by law has socialjustification. A
Secondly, even assuming that acts done in private with consent
do not in themselves constitute a serious evil, there is a risk
involved in repealing legislation which has been in force for a
long time ........ Ultimately, the answer to the question whether
homosexual acts ought to be punished depends on the view one B
takes of the relationship of criminal law to morals ....... We are
inclined to think that Indian society, by and large, disapproves of
homosexuality and this disapproval is strong enough to justify it
being treated as a criminal offence even where adults indulge in
it in private."
c
In view of the Commission's conclusions regarding the purview of
Section 377 !PC, the said section was clearly intended to punish certain
forms of private sexual relations perceived as immoral. Despite the same,
the petitioner submits, the respondent authorities have, without any
justification, registered those cases of sexual violence which would D
otherwise fall within the scope and ambit of Section 375/376 !PC, as cases
of moral turpitude under Section 377 !PC. It is submitted that the
respondent authorities and their agents have wrongly strained the language
of Section 377 !PC intended to punish "homosexual" behaviour to punish
more serious cases of sexual violence against women and children when E
the same ought to be dealt with as sexual offences within the meaning of
Section 375/376 !PC in violation of Articles 14 and 21 of the Constitution
of India.
8. It is submitted that Article 15(3) of the Constitution oflndia allows F
for the State to make special provision for women and children. It follows
that "special provision" necessarily implies "adequate" provision. Further,
that the arbitrary and narrow interpretation sought to be placed by the
respondent authorities and their agents on Section 375/376 renders the
effectiveness of redress under the said Sections and in particular under
Section 376(2)(f) meaningless in violation of Article 15(3) ofthe Constitution G
of India. The petitioner has also referred to the U.N. Right of Child
Convention ratified by the respondent No. I on I Ith December, 1993 as
. well as the U.N. Convention on the Elimination of Discrimination Against
Women which was ratified in August 1993. In view of the ratification, the
respondent No. I has created a legitimate expectation that it shall adhere H
734 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.
A to its International commitments as set out under the respective Conventions.
In the present case, however, the existing interpretation of rape sought to
be imposed by the respondent authorities and their agents is in complete
violation of such International commitments as have been upheld by this
Court.
B
9. By an order passed on 3.11.2000 the parties were directed to
formulate issues which arise for consideration. Accordingly, the petitioner
has submitted the following issues and legal propositions which require
consideration by the Court :
C (a) Given that modern feminist legal theory and jurisprudence look at
rape as an experience of humiliation, degradation and violation rather
than an outdated notion of penile/vaginal penetration, whether the
tern "rape" should today be understood to include not only forcible
penile/vaginal penetration but all forms of forcible penetration
D including penile/oral penetration, penile/anal penetration, object or
finger/vaginal and object or finger/anal penetration.
(b) Whether all forms of non-consensual penetration should not be
subsumed under Section 375 of the Indian Penal code and the same
E should not be limited to penile vaginal penetration only.
(c) In particular, given the widespread prevalence of child sexual abuse
and bearing in mind the provisions of the Criminal Law (Amendment)
Act, 1983 which specifically inserted Section 376(2)(f) envisaging
the offence of"rape" of a girl child howsoever young below 12 years
F of age, whether the expression "sexual intercourse" as contained in
Section 375 of the Indian Penal Code should correspondingly include
all forms of penetration such as penile/vaginal penetration, penile/oral
penetration, penile/anal penetration, finger/vagina and finger/anal
penetration and object/vaginal penetration; and whether the expression
G "penetration" should not be so clarified in the Explanation to section
375 of the India Penal Code.
(d) Whether a restrictive interpretation of"penetration" in the Explanation
to Section 375 (rape) defeats the very purpose and intent of the
H provision for punishment for rape under Section 376(2)(f) "Whosever
SAKSHI v. U.O.l. [G.P. MATHUR, J.] 735
commits rape on a woman when she is under twelve years of age." A
(e) Whether, penetration abuse of a child below the age of 12 should no
longer be arbitrarily classified according to the 'type' of penetration
(ignoring the 'impact' on such child') either as an "unnatural offence"
under Section 377 !PC for penile/oral penetration and penile/anal B
penetration or otherwise as "outraging the modesty of a woman"
under Section 354 for finger penetration or penetration with an
inanimate object.
(f) Whether non-consensual penetration of a child under the age of 12 C
should continue to be considered as offences under Sectoin 377
("Unnatural Offences") on par with certain forms of consensual
penetration (such as consensual homosexual sex) where a consenting
party can be held liable as an abettor or otherwise.
(g) Whether a purposive/teleological interpretation of "rape" under D
Section 3751376 requires taking into account the historical disadvantage
faced by a particular group (in the present case, women and children)
to show that the existing restrictive interpretation worsens that
disadvantage and for that reason fails the test of equality within the
meaning of Article 14 of the Constitution of India. E
(h) Whether the present narrow interpretation treating only cases of
penile/vaginal penetration as rape, adversely affects the sexual integrity
and autonomy of women and children in violation of Article 21 of
Constitution of India.
F
10. Counter affidavit on behalf of respondents No. I and 2 has been
filed by Mr. Mukherjee, Director in the Ministry of Home Affairs. It is
stated therein that Sections 375 and 376 have been substantially changed
by the Criminal Law (Amendment) Act, 1983. The same Act has also
introduced several new Sections viz. 376A, 3768, 376C and 376D !PC. G
These sections have been inserted with a view to provide special/adequate
provisions for women and children. The term "rape" has been clearly
defined under Section 375 IPC. Penetration other than penile/vaginal
penetration are unnatural sexual offences. Stringent punishments are
provided for such unnatural offences under Section 377. The punishment H
736 SUPREME COURT REPORTS (2004] SUPP. 2 S.C.R.
A provided under Section 377 is imprisonment for life or imprisonment of
either description for a term which may extend to I0 years and shall also
be liable to fine. Section 3 77 deals with unnatural offences and provides
for a punishment as severe as that provided for rape in Section 376. Section
354 and 506 have been framed with a view to punish lesser offence of
B criminal assault in the from of outraging the modesty of a woman, whereas
Sections 376 and 377 provide stringent punishment for sexual offences.
The types of several o;fences as mentioned by the petitioner i.e. penile/
anus penetration, penile/oral penetration, finger/anile penetration, finger/
vaginal penetration or object/vaginal penetration are serious sexual offences
of unnatural nature and are to be covered under Section 377 which provides
C stringent punishment. Therefore, the plea of petitioner that offences under
Section 377 are treated as lesser offences is incorrect. It is also submitted
in the counter affidavit that penetration of the vagina, anus or urethra of
any person with any part of the body of another person under than penile
penetration is considered to be unnatural and has to be dealt with under
D Section 377 IPC. Section 378(2)(f) provides stringent punishment for
committing rape on a woman when she is under the age of 12 years. Child
sexual abuse of any nature, other than penile penetration, is obviously
unnatural and are to be dealt with under Section 377 IPC. It is further
submitted that Section 354 IPC provides for punishment for assault or
E criminal force to woman to outrage her modesty. Unnatural sexual offences
can not be brought under the ambit of this Section. Rape defined under
Section 375 is penile/vaginal penetration and all other sorts of penetration
are considered to be unnatural sexual offences. Section 377 provides
stringent punishment for such offences. It is denied that provisions of
F Sections 375, 376 and 377 are violative of fundamental rights under
Articles I 4, 15(3) and 2 I of the Constitution of India. Sexual penetration
as penile/anal penetration, finger/vaginal and finger/anal penetration and
object and vaginal penetration are most unnatural forms of perverted sexual
behaviour for which Section 377 provides stringent punishment.
G 11. Ms. Meenakshi Arora, learned counsel for the petitioner has
submitted that Indian Penal Code has to be interpreted in the light of the
problems of present day and a purposive interpretation has to be given. She
has submitted that Section 375 IPC should be interpreted in the current
scenario, specially in regard to the fact that child abuse has assumed
H alarming proportion in recent times. Learned counsel has stressed that the
SAKSHI v. U.O.l. [G.P. MATHUR, J.] 737
words "sexual intercourse" in Section 375 IPC should be interpreted to A
mean all kinds of se~rnal penetration of any typeof any orifice of the body
and not the intercourse understood in the traditional sense. The words
"sexual intercourse" having not been defined in the Penal Code, there is
no impediment in the way of the Court to give it a wider meaning so that
the various types of child abuse may come within its ambit and the B
conviction of an offender may be possible under Section 376 !PC. In this
connection, she has referred to United Nations Convention on the elimination
of all forms of discrimination against Women, 1979 and also Convention
on the Rights of the Child adopted by the General Assembly of the United
Nations on 20th February, 1989 and especially to Articles 17(e) and 19 C
thereof, which read as under :
ARTICLE 17
States Parties recognise the important function performed by the
mass media and shall ensure that the child has access to information D
and material from a diversity of national and international sources,
especially those aimed at the promotion of his or her social,
spiritual and moral well-being and physical and mental health. To
this end, States Parties shall -
E
(a) .......................... (Omitted as not relevant)
(e) Encourage the development ofappropriate guidelines for the
protection of the child from information and material injurious
to his or her well-being, bearing in mind the provisions of F
articles I3 and I 8.
ARTICLE 19
I. States Parties shall take all appropriate legislative
administrative, social and educational measures to protect G
the child from all forms of physical and mental violence,
injury or abuse, neglect or negligenttreatment, maltreatment
or exploitation including sexual abuse, while in the care of
parent(s), legal guardian(s) or any other persons who has the
care of the child. H
738 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.
A 2. Such protective measures should, as appropriate, include
affective procedures for the establishment of social
programmes to provide necessary support for the child and
for those who have the care of the child, as well as for other
forms of prevention and for identification reporting, referral,
investigation, treatment and follow-up of instances of child
B
maltreatment described heretofore, and, as appropriate, for
judicial involvement.
12. In support of her submission, learned counsel has referred to
following passage of statutory interpretation by F.A.R. Bennion
C (Bumerworths - 1984) at page 355-357 :
"While it remains law, and Act is to be treated as always
speaking. In its application on any date, the language of the Act,
though necessarily embedded in its own time, is nevertheless to
be construed in accordance with the need to treat it as current law.
D
It is presumed that Parliament intends the Court to apply to
an ongoing Act a construction that continuously updates its
wording to allow for changes since the Act was initially framed.
E In particular where, owing to developments occurring since
the original passing of an enactment, a counter-mischief comes
into existence or increases. It is presumed that Parliament intends
the Court so to construe the enactment as to minimise the adverse
effects of the counter-mischief.
F The ongoing Act. In construing an ongoing Act, the interpreter
is to presume that Parliament intended the Act to be applied at any
future time in such a way as to give effect to the true original
intention. Accordingly, the interpreter is to make allowances for
any relevant changes that have occurred, since the Act's passing,
G in law, social conditions, technology, the meaning of words, and
other matters.
An enactment of former days is thus to be read today, in the
light of dynamic processing received over the years, with such
H modification of the current meaning of its language as will now
SAKSHI v. U.0.1. [G.P. MATHUR, J.] 739
give effect to the original legislative intention. The reality and A
effect of dynamic processing provides the gradual adjustment. It
is constituted by judicial interpretation, year in and year out. It
also comprises processing by executive offiqials.
In this connection, she has also referred to S. Gqpal Reddy v. State B
ofA.P., [1996) 4 SCC 596 where the Court referred to the following words
of Lord Denning in Seaford Court Estates Ltd. v. Asher, [1949] 2 ALL ER
155 :
" .............. It would certainly save the Judges trouble if Acts of C
Parliament were drafted with divine prescience and prefect clarity.
In the absence of it, when a defect appears a Judge cannot simply
fold his hands and blame the draftsman. He must set to work on
the constructive task of finding the intention of Parliament, and
he must do this not only from the language of the statute, but also
from a consideration of the social conditions which gave rise to D
it and of the mischief which it was passed to remedy, and then
he must supplement the written word so as to give 'force and life'
to the intention of the legislature ........... A Judge should ask
himself the question how, ifthe makers of the Act had themselves
come across this ruck in the texture of it, they would have E
straightened it out? He must then do as they would have done.
A judge must not alter the material of which the Act is woven,
but he can and should iron out the creases."
And held that it is a well known rule of interpretation of Statutes that the F
text and the context of the entire Act must be looked into.while interpreting
any of the expressions used in a Statute and that the Courts must look to
the object which 'the Statute seeks to achieve while interpreting any of the
provisions of the Act and a purposive approach is necessary . Accordingly
the words "at or before or after the marriage as consideration for the
marriage" occurring in Section 2 of the Dowry Prohibition Act were G
interpreted to mean demand of dowry at the "negotiation stage" as a
consideration for proposed marriage and "marriage" was held to include
the "proposed marriage" that may not have taken place. Reference is also
made to Directorate of Enforcement v. Deepak Mahajan & Anr., [1994)
3 sec 440, wherein it was held that a mere mechanical interpretation of H
740 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.
A the words devoid of concept or purpose will reduce most of legislation to
futility and that it is a salutary rule, well established, that the intention of
the legislature must be found by reading the Statute as a whole. Accordingly,
certain provisions of FERA and Customs Act were interpreted keeping in
mind that the said enactments were enacted for the economic development
B of the country and augmentation of revenue. The Court did not accept the
literal interpretation suggested by the respondent therein and held that sub-
section ( 1) and (2) of Section 167 Cr. P.C. are squarely applicable with
regard to the production and detention of a person arrested under the
provisions of Section 35 of FERA and Section 104 of Customs Act and
C that a Magistrate has jurisdiction under Section 167(2) Cr. P.C. to authorise
detention of a person arrested by an authorised officer of the Enforcement
Directorate under FERA and taken to the Magistrate in compliance of
Section 35(2) of FERA.
13. Ms. Meenakshi Arora has S\Jbmitted that this purposive approach
D is being adopted in some of other countries so that the criminals do not
go unscathed on mere technicality of law. She has placed strong reliance
on some decisions of House of Lords to substantiate her contentions and
the most notable being R. v. R, [1991] 4 All ER 481 where it was held
as under :
E
"The rule that a husband cannot be criminally liable for raping his
wife if he has sexual intercourse with her without her consent no
longer forms part of the law of England since a husband and wife
are now to be regarded as equal partners in marriage and it is
unacceptable that by marriae the wife submits herself irrevocably
F to sexual intercourse in all circumstances or that it is an incident
of modern marriage that the wife consents to intercourse in all
circumstances, including sexual intercourse obtained only by
force. In Section 1(1) of the Sexual Offences (Amendment) Act,
1976, which defines rape as having 'unlawful' intercourse with
G a woman without her consent, the word 'unlawful' is to be treated
as mere surplusage and not as meaning 'outside marriage', since
it is clearly unlawful to have sexual intercourse with any woman
without her consent."
H The other decision cited by learned counsel is Regina v. Burstow and
SAKSHI v. U.0.1. (G.P. MATHUR, J.) 741
Regi~a v. Ireland, [1997] 4 All ER 74 where a person accused of repeated A
silent telephone calls accompanied on occasions by heavy breathing to
women was held guilty of causing psychiatric injury amounting to bodily
harm under Section 42 of Offences against the Person Act, 1861. In the
course of the discussion, Lord Steyn observed that the criminal law has
moved on in the light of a developing understanding of the link between B
the body and psychiatric injury and as a matter of current usage, the
contextual interpretation of "inflict" can embrace the idea of one person
inflicting psychiatric injury on another. It was further observed that the
interpretation and approach should, so far as possible, be adopted which
treats the ladder of offences as a coherent body of law. Learned counsel C
has laid emphasis on the following passage in the judgment :
"The proposition that the Victorian legislator when enacting
section 18, 20 and 4 7 of the Act 1861, would not have had in mind
psychiatric illness is no doubt correct. Psychiatry was in its
infancy in [861. But the subjective intention of the draftsman is D
immaterial. The only relevant enquiry is as to the sense of the
words in the context in which they are used. Moreover the Act
.of 1861 is a statute of the "always speaking" type : the statute must
be interpreted in the light of the best current scientific appreciation
of the link between the body and psychiatric injury." E
It has thus been contended that the words "sexual intercourse" occurring
in Section 375 !PC must be given a larger meaning than as traditionally
understood having regard to the monstrous proportion in which the cases
of child abuse have increased in recent times. She has also referred to a F
decision of Constitutional Court of South Africa in the National Coalition
for Gay and Lesbian Equality & Ors. v. The Minister of Home Affairs and
Ors., Case CCT 10/99 wherein it was held that Section 25(5) of the Aliens
Control Act 96 of 1991, by omitting to confer on persons, who are partners
in permanent same sex life partnerships, the benefits it extends to spouses,
unfairly discriminates, on the grounds of their sexual orientation and G
marital status, against partners in such same-sex partnerships who are
permanently and lawfully resident in the Republic. Such unfair discrimination
limits the equality rights of such partners guaranteed to them by section
9 of the Constitution and their right to dignity under Section l 0. It was
further held that it would not be an appropriate remedy to declare the whole H
742 SUPREME COURT REPORTS (2004] SUPP. 2 S.C.R.
A of section 25(5) invalid. Instead, it would be appropriate to read in, after
the word "spouse" in the section, the words "or partner, in a permanent
same-sex life partnership".
14. Ms. Meenakshi Arora has also placed before the Court the
B judgments rendered on 10th December, 1998 and 22nd February, 2001 by
the International Tribunal for the Prosecution of Persons Responsible for
Serious Violations of International Humanitarian Law Committed in the
Territory of the Former Yugoslavia since 1991. Under Article 5 of the
Statute of the International Tribunal, rape is a crime against humanity. Rape
may also amount to a grave breach of the Geneva Conventions, a violation
C of the laws or customs of the war or an act of genocide, if the requisite
elements are met, and may be prosecuted accordingly. The Trial Chamber
after taking note of the fact that no definition of rape can be found in
international law, proceeded on the following basis :
D "Thus, the Trial Chamber finds that the following may be
accepted as the objective elements of rape :
(i) the sexual penetration, however slight :
E (a) of the vagina or anus of the victim by the penis of the
perpetrator or any other object used by the perpetrator,
or
(b) of a mouth of the victim by the penis of the perpetrator.
F (ii) by coercion or force or threat of force against the victim or
a third person."
Jn the second judgment of the Trial Chamber dated 22nd February,
200 I, the interpretation which focussed on serious violations of a sexual
G autonomy was accepted.
15. Shri R.N. Trivedi, learned Additional Solicitor General, appearing
for the respondents, has submitted that International Treaties ratified by
India can be taken into account for framing guidelines in respect of
H enforcement of fundamental rights but only in absence of municipal laws
SAKSHI v. U.0.1. (G.P. MATHUR, J.] 743
as held in Vishaka v. State of Rajasthan, [1997] 6 sec 241 and Lakshmi A
Kant Pandey v. Union of India, [1984] 2 SCC 244. When laws are already
existing, subsequent ratification oflnternational Treaties would not render
existing municipal laws ultra vires of Treaties in case of inconsistency. In
such an event the State through its legislative wing can modify the law to
bring it in accord with Treaty obligations. Such matters are in the realm B
of State policy and are, therefore, not enforceable in a Court of law. He
has further submitted that in International law, ratified Treaties can be
deemed interpreted in customary law unless the former are inconsistent
with the domestic laws or decisions of its judicial Tribunals. The decision
of the International Tribunal for the Crimes committed in the Territory of C
the Former Yugoslavia cannot be used for interpretation of Section 3 54 and
3 75 IPC and other provisions. Even decisions of International Court of
Justice are binding only on the parties to a dispute or intervenors in view
of Articles 92, 93 and 94 of the UN Charter and Articles 59 and 63 of the
IJC Statutes. Learned counsel has also submitted that no writ of mandamus
can be issued to the Parliament to amend any law or to bring it in accord D
with Treaty obligations. He has also submitted that Sections 354 and 375
IPC have been interpreted in innumerable decisions of various High Courts
and also of the Supreme Court and the consistent view is that to hold a
person guilty of rape, penile penetration is essential The law on the point
is similar both in England and USA. In State of Punjab v. Major Singh, E
[1966] Supp. SCR 266 it was held that ifthe hymen is ruptured by inserting
a finger, it would not amount to rape. Lastly, it has been submitted that
a writ petition under Article 32 of the Constitution would not lie for
reversing earlier decisions of the Court on the supposed ground that a
restrictive interpretation has been given to certain provisions of a Statute. F
16. In support of his submission Shri Trivedi has placed reliance on
Volume 11(1) of Halsbury's Laws of England para 514 (Butterworths -
1990) wherein unlawful sexual intercourse with woman without her
consent has been held to be an essential ingredient of rape. Reference has
also been made to Volume 75 Corpus Juris Secundum para 10, wherein G
it is stated that sexual penetration of a female is a necessary element of
the crime of rape, but the slightest penetration of the body of the female
by the sexual organ of the male is sufficient. Learned counsel has also
referred to Principles of Public International Law by Ian Brownlie, where
the learned author, after referring to some decisions of English Courts has H
744 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.
A expressed an opinion that the clear words of a Statute bind the Court even
if the provisions are contrary to international law and that there is no such
thing as a standard of international law extraneous to the domestic law by
a Kingdom and that international law as such can confer no rights
cognizable in the municipal courts. Learned counsel has also referred to
B Dicey and Moris on The Conflict of Laws wherein in the Chapter on the
enforcement of foreign law, following Rule has been stated :
"English Courts will not enforce or recognise a right, power,
capacity, disability or legal relationship arising under the law of
a foreign country, if the enforcement or recognition of such right,
c power, capacity, disability or legal relationship would be
inconsistent with the fundamental public policy of English law."
With regard to penal law, it has been stated as under :
D "The common law considers crimes as altogether local, and
cognisable and punishable exclusively in the country where they
are committed ........... Chief Justice Marshall, in delivering the
opinion of the Supreme Court, said : 'The Courts of no country
execute the penal laws of another'."
E
17. This Court on 13.1.1998 referred the matter to the Law Commission
of India for its opinion on the main issue raised by the petitioner, namely,
whether all forms of penetration would come within the ambit of Section
375 !PC or whether any change in statutory provisions need to be made,
F and if so, in what respect? The Law Commission had considered some of
the matters in its 156th Report and the relevant extracts of the
recommendation made by it in the said Report, concerning the issue
involved, were placed before the Court. Para 9.59 of the Report read as
under :
G "9.59 Sexual-child abuse may be committed in various forms such
as sexual intercourse, carnal intercourse and sexual assaults. The
cases involving penile penetration into vagina are covered under
Section 375 of the !PC. If there is any case of penile oral
penetration and penile penetration into anus, Section 377 IPC
H dealing with unnatural offences, i.e., carnal intercourse against the
SAKSHI v. U.0.1. [G.P. MATHUR, J.) 745
order of nature ~ith any man, woman or animal, adequately takes A
care of them. !facts such as penetration of finger or any inanimate
object into vagina or anus are committed against a woman or a
female child, the provisions of the proposed Section 354 IPC
whereunder a more severe punishment is also prescribed can be
invoked and as regards the male child, the penal provisions of the B
IPC concerning 'hurt', 'criminal force' or assault' as the case may
be, would be attracted. A distinction has to be naturally maintained
between sexual assault/use of criminal force falling under Section
354, sexual offences falling under Section 375 and unnatural
offences falling under Section 377 of the Indian Penal Code. It
inay not be appropriate to bring unnatural offences punishable C
under Section 377 IPC or mere sexual assault or mere sexual use
of criminal force which may attract Section 354 IPC within the
ambit of 'rape' which is a distinct and graver offence with a
definite connection. It is needless to mention that any attempt to
commit any of these offences is also punishable by virtue of D
Section 511 IPC. Therefore, any other or more changes regarding
this law may not be necessary."
Regarding Section 377 !PC, the Law Commission recommended that
in view of the ongoing instances of sexual abuse in the country where E
unnatural offences is committed on a person under age of eighteen years,
there should be a minimum mandatory sentence of imprisonment for a term
not less than two years but may extend to seven years and fine, with a
proviso that for adequate and special reasons to be recorded in the
judgment, a sentence of less than two years may be imposed. The petitioner F
submitted the response on the recommendations of the Law Commission.
On 10/18.2.2000, this Court again requested the Law Commission to
consider the comments of representative organisations (viz. SAKSHI,
IFSHA and AIDWA).
18. The main question which requires consideration is whether by a G
process of judicial interpretation the provisions of Section 375 IPC can be
so altered so as to include all forms of penetration such as penile/vaginal
penetration, penile/oral penetration, penile/anal penetration, finger/vagina
and finger/anal penetration and object/vaginal penetration within its ambit.
Section 375 uses the expression "sexua: intercourse" but the said expression H
746 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.
A has not been defined. The dictionary meaning of the word "sexual
intercourse" is hetrosexual intercourse involving penetration of the vagina
by the penis. The Indian Penal Code was drafted by the First Indian Law
Commission of which Lord Mecaulay was the President. It was presented
to the Legislative Council in I 856 and was passed on October 6, 1860. The
B ,Penal Code has undergone very few changes in the last more than 140
years. Except for clause sixthly of Section 375 regarding the age of the
woman (which in view of Section 10 denotes a female human being ofany
age) no major amendment has been made in the said provision. Sub-section
(2) of Section 376 and Sections 376A to 3760 were inserted by Criminal
Law (Amendment) Act, 1983 but sub-section (2) of Section 376 merely
C deals with special types of situations and provides for a minimum sentence
of 10 years. It does not in any manner alter the definition of'rape' as given
in Sectoin 375 lPC. Similarly, Section 354 which deals with assault or
criminal force to woman with intent to outrage her modesty and Section
377 which deals with unnatural offences have not undergone any major
D amendment.
19. It is well settled principle that the intention of the Legislature is
primarily to be gathered form the language used, which means that
attention should be paid what has been said as also to what has not been
E said. As a consequence a construction which requires for its support
addition or substitution of words or which results in rejection of words as
meaningless has to be avoided. It is contrary to all rules of construction
to read words into an Act unless it is absolutely necessary to do so.
Similarly it is wrong and dangerous to proceed by substituting some other
F words for words of the statute. It is equally well settled that a statute
enacting an offence or imposing a penalty is strictly construed. The fact
that an enactment is a penal provision is in itself?. reason for hesitating
before ascribing to phrases used in it a meaning broarder than that they
would ordinarily bear. (Principles of Statutory Interpretation by Justice
G.P. Singh p. 58 and 751 Ninth Edition).
G
20. Sections 354, 375 and 377 IPC have come up for consideration
before the superior courts of the country on innumerable occasions in a
period of almost one and a half century. Only sexual intercourse, namely,
hetrosexual intercourse involving penetration of the vagina by the penis
H coupled with the explanation that penetration is sufficient to constitute the
SAKSHI v. U.0.1. [G.P. MATHUR, J.] 747
sexual intercourse necessary for the offence of rape has been held to come A
within the purview of Section 375 IPC. The wide definition which the
petitioner wants to be given to "rape" as defined in Section 375 IPC so
that the same may become an offence punishable under Section 376 IPC
has neither been considered nor accepted by any Court in India so far.
Prosecution of an accused for an offence under section 376 !PC on B
radically enlarged meaning of section 375 !PC as suggested by the
petitioner may violate the guarantee enshrined in Article 20(1) of the
Constitution which says that no person shall be convicted of any offence
except for violation of a law in force at the time of the commission of the
act charged as an offence, nor be subjected to a penalty greater than that
. which might have been inflicted under the law in force at the time of the C
commission of the offence.
21. The decision of Constitutional Court of South Africa·.cited by
learned counsel for the petitioner does not commend to us as the Court
there treated "Gays and Lesbian in permanent same sex life partnerships" D
at par with "spouses" and took upon itself the task of Parliament in holding
that in section 25(2) of the Aliens Control Act, after the word "spouse",
the words "or partner in a permanent same sex life partnership" sho11ld be
read. The decision of House of Lords in R. v. R. was given on its own tacts
which deserve notice. Here the wife had left her matrimonial home with E
her son on 21st October, 1989 and went to live with her parents. She had
consulted solicitors about matrimonial problems and had left a letter for
the husband informing him that she intended to petition for divorce. On
23rd October, 1989 the husband spoke to his wife on telephone indicating
that it was his intention also to seek divorce. In the night of 12th November; F
1989 the husband forced his way into the house of his wife's parents, who
w:"P out at that time and attempted to have sexual intercourse with her
against her will. In the course of' doing so he assaulted her by squeezing
her neck with both hands. On the facts of the case the conviction of the
husband may not be illegal. It is very doubtful whether the principle laid
down can be of universal application. In Regina v. Burstow psychiatric G
injury was held to be bodily harm under section 20, having regard. to the
meaning of the word in the usage of the present day. In our opinion the
judgment of the International Tribunal can have no application here as
Tribunal itself noted that no definition of rape can be found in International
law and it was dealing with prosecution of persons responsible for serious H
748 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.
A violations of International Humanitarian Law committed in the Territory
of former Yugoslavia. The judgment is not at all concerned with
interpretation of any provision of domestic law in peace time conditions.
The decisions cited by the learned counsel for the petitioner, therefore, do
not persuade us to enlarge the definition of rape as given in section 375
B !PC, which has been consistently so understood for over a century through
out the country.
22. It may be noted that ours is a vast and big country of over I 00
crore people. Normally, the first reaction of a victim of crime is to report
the incident at the police station and it is the police personnel who register
C a case under the appropriate Sections of the Penal Code. Such police
personnel are invariably not highly educated people but they have studied
the basic provisions of the Indian Penal Code and after registering the case
under the appropriate sections, further action in taken by them as provided
in Code of Criminal Procedure. Indian Penal Code is a part of the
D curriculum in the law degree and it is the existing definition of "rape" as
contained in Section 375 !PC which is taught to every student of law.
A criminal case is initially handled by a Magistrate and thereafter
such cases as are exclusively triable by Court of Session are committed
the Court of Session. The entire legal fraternity oflndia, lawyers or Judges,
E have the definition as contained in Section 375 !PC engrained in their mind
and the cases are decided on the said basis. The first and foremost
requirement in criminal law is that it should be absolutely certain and clear.
An exercise to alter the definition of rape, as contained in Section 375 IPC,
by a process of judicial interpretation, and that too when there is no
F ambigaity in the provisions of the enactment, is bound to result in good
deal of chaos and confusion, and will not be in the interest of society at
large.
23. Stare decisis is a well known doctrine in legal jurisprudence. The
doctrine of stare dee is is, meaning to stand by decided cases, rests upon the
G principle that law by which men are governed should be fixed, definte and
known, and that, when the law is declared by court of competent
jurisdiction authorised to construe it, such declaration, in absence of
palpable mistake or error, is itself evidence of the law until changed by
competent authority. It requires that rules of law when clearly announced
H and established by a Court of last resort should not be lightly disregarded
SAKSHI v. U.0.1. [G.P. MATHUR, J.] 749
and set aside but should be adhered to and followed. What it precludes is A
that where a principle of law has become established by a series of
decisions, it is binding on the Courts and should be followed in similar
cases. It is a wholesome doctrine which gives certainty to law and guides
the people to mould their affairs in future.
B
24. In Mishri Lal v. Dhierendra Nath, [1999] 5 SCC 11 importance
of this doctrine was emphasised for the purpose of avoiding uncertainty
and confusion and paras 14, 15, 16 and 21 of the Reports read as
under :
"14. This Court in .Muktul v. Manbhari, AIR (1958) SC 918
c
... explained the scope of the doctrine of stare decisis with reference
to Halsbury's Laws of England and Corpus Juris Secundum in the
following manner :
"The principle of stare decisis is thus stated in Halsbury's
D
Laws of England, 2nd Edn. :
"Apart from any question as to the courts being of
coordinate jurisdiction, a decision which has been
followed for a long period of time, and has been E
acted upon by persons in the formation of contracts or
in the disposition of their property, or in the general
conduct of affairs, or in legal procedure or in other
ways, will generally be followed by courts of higher
authority than the court establishing the rule, even F
though the court before whom the matter arises
afterwards might not have given the same decision had
the question come before it originally. But the Supreme
Appellate Court will not shrink from overruling a
decision, or series of decisions, which establish a G
doctrine plainly outside the statute and outside the
common law, when no title and no contract will be
shaken, no persons can complain, and no general
course of dealing be altered by the remedy of a
mistake." H
750 SUPREME COURT REPORTS (2004] SUPP. 2 S.C.R.
A The same doctrine is thus explained in Corpus Juris Secundum -
"Under the stare decisis rule, a principle of law which has
become settled by a series decisions generally is binding on
the courts and should be followed in similar cases. This rule
is based on expediency and public policy, and, although
B generally it should be strictly adhered to by the courts, it is
not universally applicable."
15. Be it noted however that Corpus Juris Secundum adds a rider
that
c
"previous decisions should not be followed to the extent that
grievous wrong may result; and, accordingly, the courts
ordinarily will not adhere to a rule of principle established
by previous decisions which they are convinced is erroneous.
The rule of stare decisis is not so imperative or inflexible
D as to preclude a departure therefrom in any case, but its
application must be determined in each case by the discretion
of the court, and previous decisions should not be followed
to the extent that error may be perf:ietuated and grievous
wrong may result."
E
16. The statement though deserves serious consideration in the
event of a definite finding as to the perpetration of a grave wrong
but that by itself does not denude the time-tested doctrine of stare
decisis of its efficacy. Taking recourse to the doctrine would be
F an imperative necessity to avoid uncertainty and confusion.
The basic feature of law is its certainty and in the event of there
being uncertainty as regards the state of law - the society would
be in utter confusion the resultant effect of which would bring
about a situation of chaos - a situation which ought always to be
avoided.
G
21. In this context reference may also be made to two English
decisions :
(a) inAdmira/tyCommrs. v. Valverda(Owners), (1938)AC 173
H (AC at p. 194) wherein the House of Lords observed that
SAKSHI v. U.0.1. [G.P. MATHUR, J.] 751
even long established conveyancing practice, although not A
as authoritative as a judicial decision, will cause the House
of Lords to hesitate before declaring it wrong, and
(b) in Button v. Director of Public Prosecution, (1966) AC 591
the House of Lords observed :
B
"In Corpus Juris Secundum, a contemporary statement
of American Law, the stare decisis rule, has been stated to
be a principle of law which has become settled by a series
of decisions generally, is binding on the courts and should
be followed in similar cases. It has been stated that this rule C
is based on expediency and public policy and should be
strictly adhered to by the courts. Under this rule courts are
bound to follow the common law as it has been judicially
declared in previously adjudicated cases and rules of
substantive law should be reasonably interpreted and D
administered. This rule has to preserve the harmony and
stability of the law and to make as steadfast as possible
Judica!ly declared principles affecting the rights of property,
it being indispensable to the due administration of justice,
especially by a court of last resort, that a question once E
deliberately examined and declared should be considered as
settled and closed to further argument. It is a salutary rule,
entitled to great weight and ordinarily should be strictly
adhered to by the courts. The courts are slow to interfere
with the
principle announced by the decision, and it may be upheld
F
even though they would decide otherwise were the question
a new one, or equitable considerations might suggest a
different result and although it has been erroneously applied
in a particular case. The rule represents an element of
continuity in law and is rooted in the psychologic need to G
satisfy reasonable expectations, but it is a principle of policy
and not a mechanical formula of adherence to the latest
decision however recent and questionable when such
adherence involves collision with a prior doctrine more
embracing in its scope, intrinsically sounder and verified by H
752 SUPREME couR:r REPORTS [2004] SUPP. 2 S.C.R.
A experience."
25. It may be noticed that on July 26, 1966, the House of Lords made
a department from its past practice when a statement was made to the
following effect :
B
'Their lordships regard the use of precedent as an
indispensably foundation upon which to decide what is the law
and its application to individual cases. It provides at least some
degree of certainty upon which individuals can rely in the conduct
of their affairs, as well as a basis for orderly development oflegal
c rules.
Their lordships nevertheless recognise that too rigid adherence
to precedent may lead to injustice in a particular case and also
unduly restrict the proper development of the law. They propose
D therefore to modify their present practice and, while treating
former decisions of this House as normally binding, to depart from
a previous decision when it appears right to do so.
In this connection they will bear in mind the danger of
E disturbing retrospectively the basis on which contracts, settlements
of property and fiscal arrangements have been entered into and
also the especial need for certainty as to the criminal law.
This announcement is not intended to affect the use of
precedent elsewhere than in this House."
F
26. While making the above statement a rule of caution was sounded
that while departing from a previous decision when it appears right to do
so, the especial need for certainty as to criminal law shall be borne in mind.
There is absolutely no doubt or confusion regarding the interpretation of
G provisions of Section 375 lPC and the law is very well settled. The inquiry
before the Courts relate only to the factual aspect of the matter which
depends upon the evidence available on the record and not on the legal
aspect. Accepting the contention of the writ petitioner and giving a wider
meaning to Section 375 !PC will lead to a serious confusion in the minds
H of prosecuting agency and the Courts which instead of achieving the object
SAKSHI v. U.0.1. [G.P. MATHUR, J.] 753
of expeditiously bringing a criminal to book may unnecessarily prolong A
'
the legal proce1:dings and would have an adverse impact on the society as
a whole. We are, therefore, of the opinion that it will not be in the larger
interest of the State or the people to alter the definition of "rape" as
contained in Section 375 !PC by a process of judicial interpretation as is
sought to be done by means of the present writ petition. B
27. The other aspect which has been highlighted and needs
consideration relates to providing protection to a victim of sexual abuse
at the time of recording this statement in court. The main suggestions made
by the petitioner are for incorporating special provisions in child sexual C
abuse cases to the following effect :
(i) permitting use of a videotaped interview of the child's statement by
the judge (in the presence of a child support person).
(ii) allow a child to testify via closed circuit television or from behind D
a screen to obtain a full and candid account of the acts complained
of.
(iii) The cross examination of a minor should only be carried out by the
judge based on written questions submitted by the defense upon E
perusal of the testimony of the minor.
(iv) Whenever a child is required to give testimony, sufficient breaks
should be given as and when required by the child.
28. The Law Commission, in its response, did not accept the said
F
request in view of Section 273 Cr.P.C. as in its opinion the principle of
the said Section which is founded upon natural justice, cannot be done
away in trials and inquiries concerning sexual offences. The Commission,
however, observed that in an appropriate case it may be open to the
prosecution to request the Court to provide a screen in such a manner that G
the victim does not see the accused while at the same time provide an
opportunity to the accused to listen to the testimony of the victim and give
appropriate instructions to his counsel for an effective cross-examination.
The Law Commission suggested that with a view to allay any apprehensions
on this score, a proviso can be placed above the Explanation to section 273 H
754 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.
A of the Criminal Procedure Code to the following effect : "Provided that
where the evidence of a person below sixteen years who is alleged to have
been subjected to sexual assault or any other sexual offence, is to be
recorded, the Court may, take appropriate measures to ensure that such
person is not confronted by the accused while at the same time ensuring
B the right of cross-examination of the accused".
29. Ms. Meenakshi Arora has referred to a decision of the Canadian
Supreme Court in Her Majesty The Queen, Appellantv. D.O.L., Respondent
and the Attorney General of Canada. Etc., [1995] 4 SCR 419. wherein the
C constitutional validity of Section 715.1 of the Criminal Code was examined.
This section provides that in any proceeding relating to certain sexual
offences in which the complainant was under age of eighteen years at the
time the offence is alleged to have been committed, a videotape made
within a reasonable time after the alleged offence in which the complainant
describes the act complained of, is admissible in evidence, ifthe complainant
D while testifying adopts the contents of the videotape. The Court of Appeal
had declared Section 715 .1 unconstitutional on the ground that the same
contravened Sections 7 and 11 (d) of the Canadian Charter of Rights and
Freedoms and could not be sustained under Section I. The Supreme Court
took note of some glaring features in such type of cases viz. the innate
E power imbalance which exists between abuser and the abused child; a
failure to recognise that the occurrence of child sexual abuse is one
intertwined with the sexual abuse of all women, regardless of age; and that
the Court cannot disregard the propensity of victims of sexual abuse to fail
to report the abuse in order to conceal their plight from institutions without
F the criminal justice system which hold stereotypical and biased views about
the victimisation of women. The Court accordingly held that the procedures
set out in Section 715.I are designed to diminish the stress and trauma
suffered by child complainants as a byproduct of their role in the criminal
justice system. The "system induced trauma" often ultimately serves to
revictimise the young complainant. The Section was intended to preserve
G the evidence of the Child and to remove the need for them to repeat their
story many times. It is often repetition of the story that results in the
infliction of trauma and stress upon a child who is made to believe that
she is not being believed and that her experiences are not validated. The
benefits of such a provision would have in limiting the strain imposed on
H child witness who are required to provide detailed testimony about
SAKSHI v. U.0.1. (G.P. MATHUR, J.] 755
confusing, embarrassing and frightful incidents of abuse in an intimidating, A.
confrontational and often hostile court room atmosphere. Another advantage
afforded by the Section is the opportunity for the child to answer delicate
question about the abuse in a more controlled, less stressful and less hostile
environment, a factor which according to social science research, may
'
drastically increase the likelihood of eliciting the truth about the events at B
hand. The videotape testimony enables the Court to hear a more accurate
account of what the child was saying about the incident at the time it first
came to light and the videotape of an early interview if used in evidence
can supplement the evidence of a child who is inarticulate or forgetful at
the trial. The Section also acts to remove the pressure placed on a child
victim of sexual assault when the attainment of "truth" depends entirely C
on her ability to control her fear, her shame and the horror of being face
to face with the accused when she must describe her abuse in a compelling
and coherent manner. The Court also observed that the rules of evidence
have not been constitutionalised into unaltered principles of fundamental
justice. Neither should they be interpreted in a restrictive manner which D
may essentially defeat their purpose of seeking truth and justice. Rules of
evidence, as much as the law itself, are not cast in stone and will evolve
with time. There Court accordingly reversed the jud~ment of Court of
Ap~~al and upheld the constitutionality of section 715. I.
E
30. We will briefly refer to the statutory provisions governing the
situation. Section 273 Cr.P.C. lays down that except as otherwise expressly
provided, all evidence taken in the course of the trial or other proceedings
shall be taken in the presence of the accused, or when his personal
attendance is dispensed with, in the presence of his pleader. Sub-section F
(1) of Section 327 Cr.P.C. lays down that any Criminal Court enquiring
into or trying any offence shall be deemed to be open Court to which the
public generally may have access, so far as the same can conveniently
contain them. Sub-section (2) of the same Sections says that notwithstanding
anything contained in sub-section (I) the inquiry into the trial of rape or
an offence under Section 376, Section 376-A, Section 376-B, Section 376- G
C or Section 376-D of the Indian Penal Code shall be conducted in camera.
Under the proviso to this sub-section the Presiding Judge may, ifhe thinks
fit, or on an application made by either of the parties, allow any particular
person 'to. have access to, or be or remain in, the room or building used
by the court. It is rather surprising that the legislature while incorporating H
756 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.
A sub-section (2) to Section 327 by amending Act 43 of 1983 failed to take
note of offences under Section 354 and 377 !PC and omitted to mention
the aforesaid provisions. Deposition of the victims of offences under
Section 354 and 377 !PC can at time be very embarrassing to them.
31. The whole inquiry before a Court being to elicit the truth, it is
B
absolutely necessary that the victim or the witnesses are able to depose
about the entire incident in a free atmosphere without any embarrassment.
Section 273 Cr.P.C. merely requires the evidence to be taken in the
presence of the accused. The Section, however, does not say that the
evidence should be recorded in such a manner that the accused should
c have full view of the victim or the witnesses. Recording of evidence
by way of video conferencing vis-a-vis Section 273 Cr.P.C. has been
held to be pergiissible in a recent decision of this Court in State of
Maharashtra v. Dr. Praful B Desai, [2003] 4 SCC 601. There is major
difference between substantive provisions defining crimes and
D providing punishment for the same and procedural enactment laying
down the procedure of trial of such offences. Rules of procedure are hand-
maiden of justice and are meant to advance and not to obstruct the cause
of justice. It is, therefore, permissible for the Court to expand or enlarge
the meanings of such provisions in order to elicit the truth and do justice
E with the parties.
32. The mere sight of the accused may induce an element of extreme
fear in the mind of the victim or the witnesses or can put them in a state
of shock. In such a situation he or she may not be able to give full details
F of the incident which may result in miscarriage of justice. Therefore, a
screen or some such arrangement can be made where the victim or
witnesses do not have to undergo the trauma of seeing the body or the face
of the accused. Often the question put in cross-examination are purposely
designed to embarrass or confuse the victims of rape and child abuse. The
object is that out of the feeling of shame or embarrassment, the victim may
G not speak out or give details of certain acts committed by the accused. It
will, therefore, be better if questions to be put by the accused in cross-
examination are given in writing to the Presiding Officer of the Court, who
may put the same to the victim or witnesses in a language which is not
embarrassing. There can hardly be any objection to the other suggestion
H given by the petitioner that whenever a child or victim of rape is required
SAKSHI v. U.0.1. [G.P. MATHUR, J.] 757
to give testimony, sufficient breaks should be given as and when required. A
The provisions of sub-section (2) of Section 327 Cr.P.C. should also apply
in inquiry or trial of offences under Section 354 and 377 IPC.
33. In State of Punjab v. Gurmit Singh, [1996] 2 SCC 384 this Court
had highlighted the importance of provisions of Section 327(2) and (3) B
Cr.P.C. and a direction was issued not to ignore the mandate of the
aforesaid provisions and to hold the trial of rape cases in camera. It was
also pointed out that such trial in camera would enable the victim of crime
to be a little comfortable and answer the questions with greater ease and
thereby improve the quality of evidence of a prosecutrix because there she C
would not be so hesitant or bashful to depose frankly as she may be in an
open court, under the gaze of the public. It was further directed that as far
as possible trial of such cases may be conducted by lady Judges wherever
available so that the prosecutrix can make a statement with greater ease
and assist the court to properly discharge their duties, without allowing the D
truth to be sacrificed at the altar of rigid technicalities.
34. The writ petition is accordingly disposed of with the following
directions :
(I) The provisions of sub-section (2) of section 327 Cr.P.C. shall in E
addition to the offences mentioned in the sub-section would also
apply in inquiry or trial offences under sections 354 and 377 !PC.
(2) In holding trial of child sex abuse or rape :
F
(a) a screen or some such arrangements may be made where the
victim or witnesses (who may be equally vulnerable like the
victim) do not see the body or face of the accused;
(ii) the questions put in cross-examination on behalfofthe accused, G
in so far as they relate directly to the incident, should be given
in writing to the President Officer of the Court who may put
them to the victim or witnesses in a language which is clear and
is not embarrassing;
H
758 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.
A (iii) the victim of child abuse or rape, while giving testimony in
court, should be allowed sufficient breaks as and when required.
These directions are in addition to those given in State of Punjab v.
Gurmit Singh.
B
35. The suggestions made ty the petitioners will advance the cause
of justice and are in the larger interest of society. The cases of child abuse
and rape are increasing at alarming speed and appropriate legislation in this
regard is, therefore, urgently required. We hope and trust that the Parliament
C will give serious attention to the points highlighted by the petitioner and
make appropriate legislation with all the promptness which it deserves.
36. Before parting with the case, we must place it on record that Ms.
Meenakshi Arora put in lot of efforts and hard labour in placing the relevant
material before the Court and argued the matter with commendable ability.
D
G.P. MATHUR, J.: For the reasons given in WP (Cr!.) No. 33 of
1997 decided today. Special Leave Petitions are dismissed.
S.K.S. Petitions dismissed.
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