Court/Judicial body: Supreme Court of India
Date: 26 May 2004 CRC
Provisions: Article 17(e): Access to appropriate information Article 19: Protection from abuse and neglect
Other international provisions:U.N. Convention on the Elimination of all Forms of Discrimination Against Women
Domestic provisions:Indian Constitution ( Article 14: Equality before law; Article 15: Prohibition of discrimination; Article 20(1): Protection in respect of conviction for offences; Article 21: Protection of life and personal liberty; Article 32: Remedies for enforcement of rights)
Background: Sakshi, an NGO focusing on violence against women, petitioned the Supreme Court of India to declare that “rape” under India’s criminal rape law (Indian Penal Code, or “IPC”, section 375) includes all forms of forcible penetration. Sakshi claimed that the current interpretation of the law, limiting rape to forcible penile/vaginal penetration only, violated both (i) the Indian Constitution and (ii) India’s international commitments under instruments such as the CRC and U.N. Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW).
Issue and resolution: Definition of rape. The Court upheld the existing definition of rape as forcible penile/vaginal penetration only, refusing to include other forms of penetration within the ambit of rape as defined under IPC s. 375.
Court reasoning: The 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. 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.
Excerpt citing CRC and other relevant human rights  Ms. Meenakshi Arora, learned counsel for the petitioner [Sakshi] 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, especially in regard to the fact that child abuse has assumed alarming proportion in recent times. Learned counsel has stressed that the words ‘sexual intercourse’ in Section 375 IPC should be interpreted to mean all kinds of sexual penetration of any type of 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 conviction of an offender may be possible under Section 376 IPC [which prescribes the punishments for rape]. 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 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 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 of appropriate guidelines for the protection of the child from information and material injurious to his or her well-being, bearing in mind the provisions of articles 13 and 18. Article 19 1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical and mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation including sexual abuse, while in the care of parents, legal guardians or any other persons who has the care of the child. 2. Such protective measures should, as appropriate, include effective 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 maltreatment described heretofore, and, as appropriate for judicial involvement. …  Shri R.N. Trivedi, learned Additional Solicitor General, appearing for the respondents [India and ors], has submitted that International Treaties ratified by India can be taken into account for framing guidelines in respect of enforcement of fundamental rights but only in absence of municipal laws as held in Vishaka vs. State of Rajasthan 1997 Indlaw SC 2304 and Lakshmi Kant Pandey vs. Union of India 1984 Indlaw SC 159. When laws are already existing subsequent ratification of International 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 of State policy and are, therefore, not enforceable in a Court of law….
Follow up: The Court’s decision called on the Parliament of India to change the law, stating: “ The suggestions made by the petitioners [Sakshi] 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 will give serious attention to the points highlights by the petitioner and make appropriate legislation with all the promptness which it deserves.” On April 29, 2009, the High Court of Delhi reiterated this sentiment in Tara Dutt v State, stating: “ Unfortunately, the criminal law of our country as its stands does not recognise this form of sexual assault [referring to “digital rape” (i.e. forcible penetration by finger)] as a heinous crime. As a result the petitioner has been convicted for a far lesser offence under Section 354 of the Indian Penal Code (IPC) for use of criminal force to outrage the modesty of a woman. Notwithstanding the 172nd Report of the Law Commission of India submitted over nine years ago to the Government of India urging that Parliament should replace the present definition of rape under Section 376 IPC with a broader definition of sexual assault, which is both age and gender neutral, nothing has been done till date. This case, and the growing instances in the recent past of sexual assault of minors, should serve as a wake−up call to make the appropriate amendments to the IPC without further delay.” Tara Dutt v. State available at: http://www.indiankanoon.org/doc/1701610/
Notes: 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 (on review of rape laws, March 2000), available at http://lawcommissionofindia.nic.in/rapelaws.htm. The Report 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.
CRIN comments: CRIN believes that this decision is inconsistent with Article 19 of the CRC. States Parties to the Convention have a duty to protect children from all forms of violence, including any manner of sexual assault, however defined. As the national courts feel they are unable to change the rape laws as they now stand, CRIN hopes that the Indian Parliament will follow their recommendation and amend legislation to protect children against all forms of sexual assault.
Citation: Sakshi v. India and ors, Final Decision on Writ Petition, Writ Petition (Crl) No33, 1997, with SLP (Crl) Nos 1672-1673, 2000; ILDC 868 (IN2004).
Link to Full Judgment:http://indiankanoon.org/doc/1103956/