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#GenderJustCourts - Expanding the definition of rape: Sakshi vs. Union of India

This post is part of a series that seeks to explore judgements relating to gender justice and equality in the Indian Courts. As a common law system, we know that it is the combination of legislation passed in parliament and interpretations made by judges that make up the laws that affect women and girls across India. We hope this series provides an insight into how past cases might impact future ones.

The Sakshi case, 2000, is a landmark judgement in the history of rape law reform in India, particularly in the context of creating victim-friendly processes in the prosecution of rape.

Background of the case

This case was brought to the Supreme Court in 1997 as a public interest litigation by an NGO ‘Sakshi,’ with the prayer that the term ‘sexual intercourse’ in rape laws be liberally interpreted, thereby bringing all types of penetrative sexual assault within the definition of rape.

Prior to the 2013 amendments to criminal laws, rape was defined as non-consensual sexual intercourse. Although the term ‘sexual intercourse’ was not defined in the Code, it came to be interpreted as penovaginal penetration only, thus excluding from the scope of rape all other forced penetrative assaults, such as anal and oral rape, digital rape, and rape using a foreign object.

As a result of this narrow interpretation, perpetrators accused of other forms of penetrative sexual assault could only be booked for lesser offences, such as outraging the modesty of a woman under Sec. 354, unnatural offences under Sec. 377, and so on. The accused persons in such cases, where convicted, would get away with minor sentences. When several such instances involving minor victims came to the light, this petition was filed by Sakshi highlighting the same. Although this narrow interpretation affected all victims of sexual violence, the petition was framed in terms of the harm suffered by minors.

The Petitioners argued that restricting the scope of sexual intercourse to peno-vaginal sex only was far removed from the evolved understanding of sex, and consequently rape. Given that rape was usually intended to humiliate the victim, framing it as peno-vaginal penetration alone served no rational purpose. The Petitioners also cited India’s international legal obligation to protect children from all forms of sexual abuse.

Highlights of the case

The Court refused to adopt a liberal interpretation of the term ‘sexual intercourse’ on the grounds that sexual intercourse was legislatively intended to mean peno-vaginal penetration only. The Court also based its decision on the doctrine of stare decisis, stating that the narrow interpretation had been established through previous decisions, and that any change would result in ‘confusion.’ The Court held that revisiting the definition of sexual intercourse fell squarely within the domain of the Parliament’s legislative prerogative. It called upon the Parliament to seriously consider the same, given the concerns highlighted by Sakshi.

Although the Court dismissed the petition by refusing to expand the definition of rape, it passed several directions to make the trial procedure more victim-friendly in cases of non-peno-vaginal penetrative sexual assault, including the following:

  1. Given that all rape trials are mandatorily conducted in camera under Sec. 327 of CrPC, this section would also be applicable to trials for offences under Sec. 354 and Sec. 377 of the IPC.

  2. During the trial of cases involving child sexual abuse,

  3. a screen may be placed between the victim/ witness and the accused to shield them from the accused person;

  4. the questions put in cross-examination on behalf of the accused should be routed through the Presiding Officer (judge) to reduce the hostility often inherent in questions posed by the defence counsel; and

  5. the victim, while giving testimony in court, should be allowed sufficient breaks as and when required.

Towards Gender Justice? Difficult to say.

While this case is often hailed as yet another victory for the movement for rape law reform, the dismissal of the petition despite the straightforward nature of the relief sought makes it difficult to say whether it was indeed a step towards gender justice. However, it resulted in an informed inquiry into the matter by the Law Commission of India, which also recommended that the definition of rape should be expanded. The definition was finally expanded only in 2013, with the enactment of the Criminal Laws (Amendment) Act, 2013, thirteen years after this decision.

Moreover, the directions passed by the court were early attempts at creating victim-friendly procedures for prosecution of rape, and shifting the focus of the national discourse on rape law reform from successful prosecution to victim-care and support.

Implications of the case

Even though the petition was dismissed, the case gave impetus to the discourse on rape. Some of the directions passed by the court in relation to making trial procedures more victim-friendly are today considered fundamental to rape prosecutions.

*Opinions expressed in this article are personal*

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