# SAKS HI v. UNION OF INDIA

- **Citation:** [2004] Supp. 2 S.C.R. 723
- **Court:** Supreme Court of India
- **Decided:** 2004-05-26
- **Bench:** Rajendra Babu, G.P. Mathur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/saks-hi-v-union-of-india-20106
- **Pages:** 36

## Headnote

Penal Code, 1860: Sections 354, 375, 376 & 277/Code of Criminal
Procedure, 1973; Sections 273 & 327
A
B
Sexual violence against women and children-Writ Petition for C
enlargement of scope of Sections 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 of rape 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/witnessesManner of recording-Held: Rules of procedure 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
of the accused, a dividing screen could be put in between the victim/witness
and the accused-Sufficient break should be given as and when requiredProvisions 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 :
B
c
Doctrine of "stare decisis "-Meaning and applicability of
Words and Phrases :
'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
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

## Text

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SAKS HI
v.
UNION OF INDIA
MAY 26, 2004
[RAJENDRA BABU, CJ. AND G.P. MATHUR, J.]
Penal Code, 1860: Sections 354, 375, 376 & 277/Code of Criminal
Procedure, 1973; Sections 273 & 327
A
B
Sexual violence against women and children-Writ Petition for C
enlargement of scope of Sections 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 of rape 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/witnessesManner of recording-Held: Rules of procedure 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
of the accused, a dividing screen could be put in between the victim/witness
and the accused-Sufficient break should be given as and when requiredProvisions 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 :
B
c
Doctrine of "stare decisis "-Meaning and applicability of
Words and Phrases :
'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
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.
(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.
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.
E
F
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
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
F
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 crossexamination 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.
(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.)
D
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;
F
(C) Issue such other writ, order or direction as this Hon 'ble Court may
deem appropriate in the present facts and circumstances.
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.
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
D
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
F
sense of self?" (Susan Brownmiller, Against Our Will 1986).
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."
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,
c
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 3 77 !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) of the 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.
B
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.
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.
F
G
H
(c)
(d)
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
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
"penetration" should not be so clarified in the Explanation to section
375 of the India Penal Code.
Whether a restrictive interpretation of"penetration" in the Explanation
to Section 375 (rape) defeats the very purpose and intent of the
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.
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
F
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 I 0 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 3 54 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 3 77 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 -
(a)
.......................... (Omitted as not relevant)
( e)
Encourage the development ofappropriate guidelines for the
protection of the child from information and material injurious
E
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,
B
investigation, treatment and follow-up of instances of child
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 :
D
E
F
G
"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.
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.
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.
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,
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
of A.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 subsection ( 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
F
G
"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
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
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.