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Supreme Court Of India
Sakshi
Versus
Union of India
Decided on MAY 26, 2004
Interpretation of Statutes-Intention of the legislature is primarily to be gathered from the language used-Statute enacting an offence or imposing a penalty to be strictly construed. (Para 19)
Indian Penal Code, 1860-Sections 354, 377-Code of Criminal Procedure, 1973-Section 327(2) (as amended by Act of 1982) and 273-Scope of-Child sexual abuse case-Trial of-Section 273 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-Recording of evidence by way of video conferencing vis-a-vis section 273 is permissible-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 if the accused-It will be better if the 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 - Whether a child or victim of rape is required to give testimony-Sufficient break should be given as and when required. (Paras 30 to 34)
(1996) 4 SCC 596; (1994) 3 SCC 440; (1997) 6 SCC 241; (1984) 2 SCC 244; 1966 Supp. SCR 266; (1999) 4 SCC 11; AIR 1958 SC 918; 1938 AC 173; 1966 AC 591; 1993 (4) SCR 419; (2003) 4 SCC 601; (1996) 2 SCC 384; (1949) 2 All ER 155, (1938) 1 All ER 162-Referred to.
Key Points: - The petition seeks to broaden the interpretation of "sexual intercourse" in section 375 IPC to include all forms of penetration (penile/oral, penile/anal, finger/vaginal, etc.) (!) (!) - The petition raises whether non-consensual penetration should be subsumed under section 375 or remain under sections 354/377, considering child victims and the intent of amendments to protect women and children (!) (!) (!) - The court discusses defendant-protective procedural measures for child sexual abuse cases, including recording evidence via video, screens to shield victims, written cross-examination questions, and breaks during testimony (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
Judgment
G. P. MATHUR, J.
( 1 ) 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 harassment, violence or any kind of atrocity or violation and is a violence intervention centre. The respondents arrayed in the writ petition are (1) 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 :
A) Issue a writ in the nature of a declaration or any other appropriate writ or direction declaring inter alia that "sexual 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 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 the broadened interpretation of "sexual intercourse" set out in prayer (A) aforesaid as offences under sections 375, 376 and 376a to 376d of the Indian Penal Code, 1860;
C) Issue such other writ, order or direction as this Honble 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 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 penetration, as lesser offences falling under either section 377 or 354 of the ipc and not as a sexual offence under section 375/376 IPC. It has been 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 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 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 the explanation to section 375 IPC does not in any way limit the term 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 offences. 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 ac cess to adequate redress in violation of articles 14 and 21 of the Constitution. Statistics and figures indicate that sexual abuse of ch
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