This article is written by Madhur Samriti Sharma, a 4th year student of the ICFAI Law School (IFHE), Hyderabad.

Case Number

Writ Petition No. 33 of 1997

Equivalent Citations

(2004) 5 SCC 546, AIR 2000 SC 3479


DR. A.S. Anand (CJI), B.N. Kirpal, K.T. Thomas, Sujata V. Manohar

Decided On

26th May, 2004

Relevant Section/Act

  • Sections 354, 377 IPC

Facts and Procedural History

There is an NGO called Sakshi which gives aid with legal, medical, residential, and many other kinds of help to women primarily to those who were victims of sexual abuse or harassment or any other offences. This case is a PIL filed by the NGO to reconsider the meaning of ‘rape’ under section 375 of Indian Penal Code where penetration is only considered to be penile/vaginal penetration and not the other kinds like penile/oral, penile/anal, finger/vaginal. This was made with special mention of child sexual abuse which has become widespread. The petition also speaks about constitutional rights and international conventions in this regard. Writ Petition filed under Sakshi under article 32 through PIL. The defendants are Union of India, Ministry of Law and Justice and Commissioner of Police, New Delhi. The petition claimed for certain reliefs like to widen the view of the term rape, and issue of direction based on the facts and circumstances of the case.

Issues before the Court

The case was filed in an effort to make the term ‘rape’ include all kinds of forcible and aggressive penetrations. It also indicates about violation of some constitutional rights and convention on rights of child adopted by United Nations General Assembly.

Ratio Decidendi 

The Indian Penal Code, 1860 shelters the sections 354, 375, 376 and 377 which is the chief sections being dealt with in the PIL. Section 354 briefly states about use of criminal force or assault on women with the purpose of infuriating her modesty. Section 375 defines the term rape as a man who has sexual intercourse with a woman under the six conditions which is mentioned in the code. Section 376 is about the penalties for rape. Section 377 is unnatural violations which are against the order of nature. The next set of laws cited are the Fundamental Rights mentioned in Part III of Indian Constitution, which are articles 14, i.e., right to equality; article 15(3) which is about special provisions for women and children; and then article 21 which is about the protection of life and personal liberty. 

Articles 17(e) and 19 of Conventions on the Rights of Child adopted by United Nations General Assembly. Article 17(e) is about providing evidence of all sorts to children, which is required, but also defending it from the harms arising out of it too. Article 19 is about protection by state to children who are victims of violence, injury or abuse of any kind, be it in the presence of guardian, parents or any other person. The state has to take all defensive steps to help the child who is a victim. The concept of stare decisis is also discussed in the judgement of the case. It tells about standing by the decisions of decided cases, it is more or less like following a precedent. Here, this was taken up to emphasize that the law and definition of rape under section 375 were to be followed as it was followed at the time.

Decision of the Court

The judgement regarding the child sex abuse or rape is that a screen or something of the kind is to be provided by the court and the victim must be given intermissions as and when needed. Also, questions of cross examination must be given to the judge. The rest of the matter must be taken by the parliament and a proper legislation must be passed in the regard.

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