Facts in Brief

This writ petition was filed by Sakshi, a women’s organisation, in the Apex Court, seeking the issuance of a writ declaring that “sexual intercourse,” as contained in Section 375 of the Indian Penal Code (IPC), included 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 — and for the issuance of a direction for the registration of all such cases as falling under Sections 375, 376, 376A and 376D of the IPC.

Arguments

It was contended by the Petitioner organisation that the existing trend of the Respondent authorities to treat sexual violence other than penile/vaginal penetration as lesser offences, falling under either Section 377 or Section 354 IPC, and not as sexual violence under Sections 375 and 376 IPC, was without any justification. It was also submitted that a limited understanding of “rape” as abuse by penile/vaginal penetration only was contrary to the contemporary understanding of sexual abuse law, as it denied the majority of women and children access to adequate redress, in violation of Articles 14 and 21. It was contended that the registration of cases of sexual violence as cases of moral turpitude under Section 377 by the Respondent authorities was without any justification, as these cases would otherwise fall within the scope and ambit of Sections 375 and 376.

Judgment

The Supreme Court concluded that although Sections 354, 375 and 377 of the IPC had come up for consideration before superior courts of the country on innumerable occasions, the wide definition which the Petitioner wanted to be given to “rape” as defined in Section 375 IPC — so that the same might become an offence punishable under Section 376 IPC — had neither been considered nor accepted by any Court in India so far.

The Court observed that the prosecution of an accused for an offence under Section 376 IPC, on a radically enlarged meaning of Section 375 IPC, would violate the guarantee enshrined in Article 20(1), which states that no person shall be convicted of any offence except for the violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

Therefore, the Apex Court held that 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 was no ambiguity in the provisions of the enactment — was bound to result in a good deal of chaos and confusion, and would not be in the interest of society at large.

Upon the aspect of the petition seeking directions to be issued to the Government and the police to ensure the protection of a victim of sexual abuse at the time of recording his statement in Court, the Court noted that since Section 273 of the Code of Criminal Procedure (CrPC) merely required evidence to be taken in the presence of the accused, and did not require that the evidence should be recorded in such a manner that the accused should have a full view of the victim or the witnesses, directions were issued that the provisions of Sub-section (2) of Section 327 CrPC would, in addition to the offences mentioned in the sub-section, also apply to the inquiry or trial of offences under Sections 354 and 377 of the IPC.

Herein the Court also took note of State of Maharashtra v. Dr. Praful B. Desai, (2003) 4 SCC 601, wherein the recording of evidence by way of video conferencing, vis-à-vis Section 273 CrPC, was held to be permissible; and State of Punjab v. Gurmit Singh, (1996) 2 SCC 384, wherein directions were given to hold the trial of rape cases in camera, and that the trial be conducted by lady judges wherever available, so that the prosecutrix can make her statement with greater ease.

For the Common Man

Dismissing the petition, the Court showed its inability to extend the statutory definition of “rape” as provided under the Indian Penal Code (Section 375), holding that it was only within the competence of the legislature to extend the definition. The Court’s observation that it would 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 also shows the Court’s concern for maintaining national peace and tranquillity.