Citation: AIR 2004 SC 3566
Bench: Rajendra Babu Cj, G.P. Mathur.
In wake of the alarming sexual abuse of children and women, Sakshi, an NGO focusing on violence against women, filed a PIL in the Supreme Court of India to declare that “rape” under India’s criminal rape law Section 375 of the IPC to include all forms of forcible penetration. Sakshi claimed that the current interpretation of the law, limiting rape to forcible penile/vaginal penetration only, violated both the Indian Constitution and India’s international commitments under instruments such as the Convention On the Rights of the Child and U.N. Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW).
The Apex Court based its decision on stare decisis, a legal principle that requires the courts to follow previously established decisions in the absence of exceptional circumstances, and the need for criminal law to be certain and clear. It held that altering the established definition of rape under IPC S. 375 would lead to confusion and ambiguity and would not be in the interest of society at large.
It went onto further list down certain guidelines regarding the trial of sexual abuse, assault and rape cases;
- In Camera Trial under the provisions of Sub-section (2) of Section 327 CrPC would further extend to the inquiry or trial of offences under Sections 354(assault or criminal force to woman with intent to outrage her modesty) and 377 (unnatural offences) IPC.
- A screen or similar arrangements should be made during the trial of child sexual abuse or rape, so that the victim or the witnesses do not see the body or face of the accused;
- Questions put in cross-examination on behalf of the accused, in so far as they relate directly to the incident should be given in writing to the Presiding Officer of the Court who may put them to the victim or witnesses in a language which is clear and is not embarrassing;
- The victim of child abuse or rape, while giving testimony in court, should be allowed sufficient breaks as and when required.
During the Sakshi case, the Court ordered the Law Commission of India to examine and respond to the issues that Sakshi raised. This exercise culminated in the 172nd Report of the Law Commission of India which suggested that the offence of “rape” be substituted by “sexual assault,” making the offence gender-neutral and applicable to a range of sexual offences other than forcible penile/vaginal penetration.