Judging in the Presence of Women as Legal Persons – Feminist alternative to the Indian Supreme Court Judgment in Sakshi v. Union of India

Abstract

In this paper I will present a feminist alternative to the Supreme Court of India’s judgment in the case of Sakshi v. Union of India AIR 2004 SC 3566. The purpose of this exercise inspired by the Feminist Judgments Project in the UK and elsewhere, is to implement feminist theory in judicial practice and to provide an alternative to the supposedly ‘universal’ voice of judicial authority. In 1997 Sakshi, a sexual violence intervention and victim support organisation, through a writ petition asked the Supreme Court of India to broaden the definition of rape by judicial re-interpretation to include all kinds of penetrative sexual violence against women. The petition argued that the narrow definition of rape as only vaginal-penile violates the fundamental rights of women who endure ‘other’ kinds of non-consensual sexual penetration. After a long deliberation, in 2004 the petition was dismissed by the Court. I have chosen to write an alternative to this particular judgment because its inadequacies affect women’s lives profoundly in relation to sexual violence and rape.