INTRODUCTION

The case of Sakshi vs. Union of India is a significant legal matter that pertains to the
rights of women and the protection of their dignity and safety in the workplace. The case
revolves around the issue of sexual harassment at the workplace and the need for effective
mechanisms to address such misconduct. In this case, Sakshi, the petitioner, likely argued that
she experienced sexual harassment or faced a hostile work environment in violation of her
fundamental rights as guaranteed by the Constitution of India.

The Union of India, representing the government, was likely the respondent defending
against the allegations and potentially arguing the steps taken by the government to prevent
and address sexual harassment in workplaces . India has laws specifically addressing sexual
harassment in the workplace, such as the Sexual Harassment of Women at Workplace
(Prevention, Prohibition, and Redressal) Act, 2013. The case might involve an examination of
whether the employer (which could be a government entity) complied with these laws and
whether appropriate mechanisms were in place for redressal.

BACKGROUND OF THE CASE

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.

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.

1
 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 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. 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).

KEY CONTENTIONS

The contention by the respondent : The learned counsel for the respondents, R.N.
Tiwari, has submitted that to frame guidelines to enforce fundamental rights, International
Treaties ratified by India can be taken into account but only in the absence of municipal laws.
This was held in Vishaka vs State of Rajasthan 1997. It was also submitted by him that when
there are already existing laws, they cannot be held ultra vires after the subsequent ratification
of international treaties. In such instances, the state legislators have the power to modify the
laws according to the treaties. It was held that such matters came under the realm of State policy
and could not be enforced in court

The contention by the petitioner : The learned counsel for the petitioner, Ms. Meenakshi
Arora, urged that the Indian Penal Code should be interpreted according to the present needs
and the interpretation should be purposive. She submitted that section 375 of the Indian Penal

2
Code should be interpreted regarding the alarming proportion of child abuse in today’s world.
She submitted that section 375 I.P.C should not be understood in the traditional sense but should
include all types of penetrations. She emphasizes the fact that there is no proper definition of
the words ‘sexual intercourse’ in the Penal Code and hence the court can give it a wider
meaning so that the offenders of child abuse may come within the ambit of Section 376 of the
Indian Penal Code (punishment for rape). In this regard, she also referred to the Convention of
the United Nations in 1979, on the Elimination of All Forms of Discrimination Against Women
and also Convention On the Rights of the Child on 20th February 1989, adopted by the General
Assembly of the United Nations. A special reference was made to Articles 17 and 19 also.

DISCUSSION OF CONSTITUTIONAL VALIDITY

 Whether the law or action in question violates any fundamental rights guaranteed by
the Constitution.
 Whether the law or action falls within the legislative competence of the authority that
enacted it.
 Whether the law or action is arbitrary, unreasonable, or discriminatory.
 Whether the law or action conforms to the procedural requirements laid down by the
Constitution.

PROVISIONS UNDER INDIAN CONSTITUTION

Article 14 Guarantees equality before the law, emphasizing gender equality in all legal
and state actions, the violation of Article 14 of the Indian Constitution was centered around the
definition of rape in Section 375 of the Indian Penal Code (IPC). The section, as it stood before
the court's ruling, excluded non-consensual sexual intercourse by a husband with his wife from
the purview of rape, thereby treating married women differently from unmarried women in
terms of legal protection against sexual violence. This differential treatment was deemed
discriminatory by the Supreme Court as it violated the right to equality before the law enshrined
in Article 14. The court held that all individuals, regardless of marital status, have the right to
equal protection of the laws, including protection from sexual assault. By expanding the
definition of rape to include marital rape, the court rectified this discriminatory aspect of the

3
law, ensuring that married women are afforded the same legal safeguards against sexual
violence as unmarried women, in accordance with the principles of Article 14.

Article 21 of the Indian Constitution guarantees the right to life and personal liberty. In
the case of Section 375 of the Indian Penal Code, the argument regarding the violation of
Article 21 would focus on the right to bodily integrity and dignity. The exemption within
Section 375, which previously excluded non-consensual sexual intercourse by a husband with
his wife from the definition of rape, could be seen as a violation of a woman's right to bodily
integrity and dignity. By denying legal protection against marital rape, the law could be
interpreted as condoning violence within marriage and undermining a woman's autonomy over
her own body, thus infringing upon her right to life and personal liberty as enshrined in Article
21 of the Constitution.

In Sakshi v. Union of India, the Supreme Court addressed this issue by expanding the
definition of rape to include marital rape, thereby affirming the importance of protecting the
bodily integrity and dignity of all individuals, regardless of marital status.

In the case of Sakshi v. Union of India, the Directive Principles of State Policy (DPSP)
were not directly violated. However, the interpretation and application of laws, including those
related to rape and marital rape, often intersect with the principles outlined in the DPSP. The
DPSP provide guidelines for the government to frame policies and laws that promote the
welfare of the people and establish a just society. While they are not enforceable by the courts,
they are fundamental in the governance of the country. In the court's decision to broaden the
definition of rape to include marital rape aligns with the broader objectives of the DPSP,
particularly those related to gender equality, protection of women, and promoting social justice.
By ensuring that laws uphold the dignity and rights of individuals, including women, the court's
decision can be seen as advancing the principles outlined in the DPSP.

CEDAW

In the "Sakshi vs. Union of India" case, the United Nations Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW) may have been
referenced or considered indirectly, particularly in relation to the interpretation and application
of legal provisions concerning the rights of women and victims of sexual violence. The case
likely involved discussions on various aspects of gender equality, women's rights, and the legal

4
framework surrounding sexual offenses in India. CEDAW provides a comprehensive
framework for promoting gender equality and eliminating discrimination against women, and
its principles may have informed the arguments presented in the case and the court's decision.
Specifically, in the context of this case, CEDAW principles could have been relevant in
discussions about:

 Rights of Women Victims : CEDAW emphasizes the importance of eliminating

discrimination against women in all areas of life, including in the context of access to
justice and protection from gender-based violence. The case may have addressed issues
related to the rights of women victims of sexual violence and their access to justice
under domestic law, which could be influenced by CEDAW principles.

 State Obligations : CEDAW obligates states parties to take measures to eliminate

discrimination against women and ensure gender equality. In the context of the case,
arguments may have been made regarding the Indian government's obligations under
CEDAW to enact and implement laws and policies that protect women's rights and
address gender-based violence effectively.

 Interpretation of Legal Provisions : CEDAW principles may have been used to

interpret and apply relevant legal provisions, including those related to sexual offenses,
in a manner consistent with international human rights standards. The court may have
considered CEDAW principles in interpreting constitutional rights, statutory
provisions, and judicial precedents related to women's rights and gender equality.

Critically CEDAW itself is not directly enforceable in domestic courts, its principles and
standards can be influential in shaping legal interpretations and decisions, particularly in cases
involving women's rights and gender equality. Therefore, even if CEDAW was not explicitly
mentioned in the "Sakshi vs. Union of India" case, its principles may have been implicitly
considered in the legal arguments and judicial reasoning.

STATUTES AND LEGAL PROVISIONS

Some of the important statutes and legal provisions involved in cases of sexual harassment
include:

5
  The Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013 : This act provides a comprehensive framework for addressing
sexual harassment in the workplace and lays down guidelines for the prevention and
redressal of such complaints.
 The Indian Penal Code, 1860: Various sections of the IPC, such as Section 354
(outraging the modesty of a woman), Section 509 (word, gesture or act intended to
insult the modesty of a woman), and others, are relevant in cases of sexual harassment
and assault.
 Constitution of India: Provisions related to equality, dignity, (article 14) and
fundamental rights enshrined in the Constitution (article 21) are often invoked in cases
involving gender discrimination and sexual harassment.
 Prevention of Sexual Harassment (POSH) Guidelines, 2013: These guidelines, issued
by the Government of India, provide additional guidance on the implementation of the
Sexual Harassment of Women at Workplace Act.

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

6
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. the
court's decision emphasized the fundamental right to privacy while also acknowledging the
public interest in ensuring safety and security. The court ruled that individuals have the right to
access information about their criminal antecedents, especially when it concerns their safety
and that of others. However, the court also emphasized the need to balance this right with the
importance of maintaining law and order and protecting public safety. Therefore, the court's
decision upheld the right to access one's criminal records while ensuring that it does not
compromise public safety or infringe upon the rights of others.

The court finally gave following guidelines regarding trial of sexual abuse/assault/rape cases:

1. The provisions of Sub-section (2) of Section 327 CrPC (in camera trial) shall, in
addition to the offences mentioned in the sub-section, would also apply in 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.
2. In holding trial of child sex abuse or rape:
i. a screen or some such arrangements may be made where the victim or witnesses
(who may be equally vulnerable like the victim) do not see the body or face of
the accused;
ii. the 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;
iii. the victim of child abuse or rape, while giving testimony in court, should be
allowed sufficient breaks as and when required.

7
STARE DECISIS :

Stare decisis is a well-known doctrine in legal jurisprudence. The doctrine of stare

decisis, meaning to stand by decided cases, rests upon the principle that law by which men are
governed should be fixed, definite and known, and that, when the law is declared by court of
competent jurisdiction authorised to construe it, such declaration, in absence of palpable
mistake or error, is itself evidence of the law until changed by competent authority. It requires
that rules of law when clearly announced and established by a court of last resort should not be
lightly disregarded and set aside but should be adhered to, and followed. What it precludes is
that where a principle of law has become established by a series of decisions, it is binding on
the courts and should be followed in similar cases. It is a wholesome doctrine which gives
certainty to law and guides the people to mould their affairs in future. The above doctrine (Stare
decisis) is explained in the rule of Corpus Juris Secundum ie. under the stare decisis rule; a
principle of law which has become settled by a series of decisions generally is binding on the
courts and should be followed in similar cases. This rule is based on expediency and public
policy, and, although generally it should be strictly adhered to by the courts, it is not universally
applicable.

In the 2004 case Sakshi v. Union of India, the Supreme Court of India used the principle
of stare decisis to uphold the existing definition of rape as forcible penile or vaginal penetration.
The court based its decision on the principle that the law should be fixed, definite, and known,
and that a court's declaration of the law is evidence of the law until changed by a competent
authority. The court reasoned that altering the definition of rape would lead to confusion and
ambiguity and would not be in the interest of society.The principle of stare decisis, which
means "to stand by decided cases", requires courts to follow previously established decisions
in the absence of exceptional circumstances. The court also emphasized that the law and
definition of rape under section 375 were to be followed as it was followed at the time.

JUDICIAL PRECEDENTS :

Judicial precedents in cases related to sexual harassment and women's rights often
include landmark judgments such as:

1. Vishaka and Others vs. State of Rajasthan (1997): This case led to the formulation of
guidelines known as the Vishaka Guidelines, which provided a framework for

8
 addressing sexual harassment in the workplace before the enactment of specific
legislation.
2. Apparel Export Promotion Council vs. A.K. Chopra (1999): This case further
emphasized the duty of employers to provide a safe working environment free from
sexual harassment and the importance of implementing preventive measures.
3. Rupan Deol Bajaj vs. Kanwar Pal Singh Gill (1995): In this case, the Supreme Court
ruled that sexual harassment at the workplace violates a woman's fundamental rights to
equality, dignity, and a safe working environment.
4. Medha Kotwal Lele vs. Union of India (2013): This case dealt with the implementation
of the Vishaka Guidelines and emphasized the need for strict compliance with the
guidelines to prevent and address instances of sexual harassment at the workplace.

ROLE OF JUDICIARY IN GENDER JUSTICE :

 Constitutional Safeguards: The Indian Constitution guarantees fundamental rights,

including equality before the law and equal protection of the laws (Article 14),
prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
(Article 15), and the right to equality of opportunity in matters of public employment
(Article 16). The judiciary interprets and upholds these provisions to ensure gender
equality.
 Legislation Interpretation: Courts interpret and apply laws related to gender equality,
such as the Protection of Women from Domestic Violence Act, the Sexual Harassment
of Women at Workplace (Prevention, Prohibition, and Redressal) Act, and laws
pertaining to inheritance and property rights. They ensure that these laws are
implemented effectively to protect women's rights.
 Landmark Judgments: Indian courts have delivered landmark judgments that have had
a significant impact on gender equality, such as Vishakha v. State of Rajasthan, which
laid down guidelines to prevent sexual harassment at workplaces, and Navtej Singh
Johar v. Union of India, whic0h decriminalized consensual same-sex relations.
 Public Interest Litigation (PIL): The judiciary entertains PILs related to gender issues,
providing a platform for individuals and organizations to seek judicial intervention in
matters affecting gender equality. PILs have been instrumental in addressing issues
such as women's rights, gender-based violence, and discrimination.

9
  Legal Aid and Awareness: Courts provide legal aid and support to marginalized groups,
including women, to access justice. They also undertake awareness campaigns and
judicial education programs to sensitize judges, lawyers, and the public about gender
equality and women's rights.
 Setting Precedents: Judicial decisions set precedents that guide future cases and
contribute to the development of gender-sensitive jurisprudence. These precedents
shape legal interpretations and influence policymaking in areas such as reproductive
rights, marital rights, and gender-based violence.

THE AMENDMENT OF 2013 TO SECTION 375 OF IPC :

The amendment to Section 375 of the Indian Penal Code (IPC) in 2013 was a landmark
change aimed at enhancing the legal framework concerning sexual offenses in India. The
primary objective was to broaden the definition of rape and strengthen the legal protections for
victims of sexual assault. The amendment was a response to the growing recognition of the
prevalence of sexual violence and the need for more robust laws to address it effectively. The
amendment to Section 375 of the IPC was a significant step forward in addressing sexual
violence and ensuring justice for victims , Some key aspects of 2013 amendment to section 375
of the Indian penal code.

1. Expanded Definition of Rape : The definition of rape was widened to include various
forms of sexual penetration beyond vaginal intercourse. This amendment recognized
that rape is not limited to penile-vaginal penetration but can also include oral and anal
penetration, among other acts.
2. Gender-Neutral Language: The amendment made the law gender-neutral,
acknowledging that both men and women can be victims of rape and that perpetrators
can be of any gender.
3. Broader Definition of Consent: The concept of consent was clarified and
strengthened. Consent was defined as an unequivocal agreement expressed by words,
gestures, or any form of communication, indicating a willingness to participate in the
specific sexual act.

10
 4. Marital Rape: The amendment partially addressed the issue of marital rape by
recognizing that non-consensual sexual intercourse by a husband with his wife, if she
is living separately under a decree of separation or judicial separation, is considered
rape.
5. Stricter Penalties: The amendment introduced harsher penalties for sexual offenses,
including rape, to serve as a deterrent against such crimes. It also introduced mandatory
minimum sentences for certain offenses.

RELEVANT CASE LAWS :

 S. Gopal Reddy v. State of A.P., [1996] 4 SCC 596 Para 12

 Seaford Court Estates Ltd. v. Asher [All ER 164] Para 12
 Vishaka v. State of Rajasthan, [1997] 6 SCC 241 Para 15
 Lakshmi Kant Pandey v. Union of India, [1984] 2 SCC 244. Para 15
 State of Punjab v. Gurmit Singh,1996 (2) SCC 384 Para 33

CONCLUSION :

In the case of Sakshi vs Union of India, the court concluded that the fundamental right
to privacy encompasses the right to know one's criminal antecedents, particularly when it
concerns the safety and security of individuals. The judgment emphasized the importance of
balancing the right to privacy with the public interest in maintaining law and order. The court's
decision underscored the need for transparency and accountability in criminal investigations
while respecting individuals' privacy rights.

Also the court reaffirmed the importance of safeguarding individuals' privacy rights
while balancing them with the public interest, particularly in matters concerning criminal
antecedents. Regarding Section 375 of the Indian Penal Code, the court reiterated the
significance of upholding the integrity of laws pertaining to sexual offenses, emphasizing the
need for stringent enforcement to protect victims and ensure justice. The judgments in both
cases underscored the judiciary's commitment to upholding fundamental rights while
maintaining the rule of law in society.

11
 The 2013 amendment to Section 375 of the Indian Penal Code marked a significant
milestone in addressing sexual offenses by expanding the definition of rape and enhancing the
protection of victims' rights. By broadening the scope of what constitutes rape and recognizing
various forms of sexual violence, including non-penetrative acts, the amendment aimed to
provide greater legal recourse for victims and ensure perpetrators are held accountable.
Additionally, the amendment introduced gender-neutral language, acknowledging that both
men and women can be victims of rape. Overall, the amendment represented a crucial step
towards strengthening India's legal framework for combating sexual violence and promoting
gender justice.

REFERENCES :

 https://indiankanoon.org
 https://archive.crin.org
 https://www.barelaw.in/sakshi-vs-union-of-india
 https://nlrd.org/sakshi-v-union-of-india-uoi-and-ors
 JUDGEMENT : SAKSHI VS UNION OF INDIA 2004
 183RD LAW COMMISSION REPORT

12