‘Skin-to-skin’ judgment highlights
The Supreme Court quashed the controversial judgment of the Bombay HC in a case under the POCSO Acton 18.11.2021, holding that the most important ingredient constituting sexual assault is sexual intent and not skin-to-skin contact with the child.
A bench comprising Justice Uday Umesh Lalit, Justice S Ravindra Bhat and Justice Bela M Trivedi pronounced the judgment in the appeals filed by the Attorney General of India, National Commission for Women and the State of Maharashtra against the judgment of the High Court.
The judgment wasauthored by Justice Trivedi whereas justice Bhat has given a concurring judgment.
Important observations made by the Supreme Court in this judgment are as under:-
- Touching the sexual portion of the body or any other act involving physical contact that is done with sexual intent constitutes sexual assault under Section 7 of the POCSO Act.
- Justice Bhat stated that “Contact” on the other hand, which is used in the second limb, has a wider connotation; it encompasses - but is not always limited to – ‘touch’. While it is not immediately apparent why the term ‘physical contact’ has been used in the second limb, its use in conjunction with “any other act” (controlled by the overarching expression “with sexual intent”), indicates that ‘physica contact’ means something which is of wider import than ‘touching’. Viewed so, physical contact without penetration, may not necessarily involve touch. The "other act" involving "physical contact" may involve: direct physical contact by the offender, with any other body part (not mentioned in the first limb) of the victim; other acts, such as use of an object by the offender, engaging physical contact with the victim; or in the given circumstances of the case, even no contact by the offender (the expression "any other act" is sufficiently wide to connote, for instance, the victim being coerced to touch oneself).
- Parliamentary intent and emphasis, however, is that the offending behavior (whether the touch or other act involving physical contact), should be motivated with sexual intent. Parliament moved beyond the four sexual body parts, and covered acts of a general nature, which when done with sexual intent, are criminalized by the second limb of Section 7. The specific mention of the four body parts of the child in the first limb, and the use of the controlling expression “sexual intent” mean that every touch of those four body parts is prima facie suspect.
- The circumstances in which touch or physical contact occurs would be determinative of whether it is motivated by ‘sexual intent’. There could be a good explanation for such physical contact which include the nature of the relationship between the child and the offender, the length of the contact, its purposefulness; also, if there was a legitimate non-sexual purpose for the contact. Also relevant is where it takes place and the conduct of the offender before and after such contact. In this regard, it would be useful to always keep in mind that “sexual intent” is not defined, but fact-dependent – as the explanation to Section 11 specifies.
- The limitations in law in dealing with acts that undermined the dignity and autonomy of women and children, ranging from behaviour that is now termed “stalking” to pornography, or physical contact, and associated acts, which were not the subject matter of any penal law, were recognized and appropriate legislative measures adopted, in other countries.8 These have been alluded to in Trivedi, J’s judgment, in detail. These laws contain nuanced provisions criminalizing behaviour that involve unwanted physical contact of different types and hues, have the propensity to harass and discomfit women and minors (including minors of either sex), or demean them
- Because the Act does not define 'touch' or 'physical contact,' the dictionary definitions were used. The act of touching with sexual intent is illegal. The most essential factor is the child's sexual intent, not skin-to-skin contact. Sexual intent is a factual matter that must be determined based on the surrounding circumstances.
- Restricting the meaning of “touch” to “skin-to-skin” contact would lead to “narrow and absurd interpretation” and destroy the intent of the Act, which was enacted to protect children from sexual offences. If such an interpretation is adopted, a person who uses gloves or any other like material while physical groping will not get conviction for the offence. That will be an absurd situation.
- Section 7 of the Act, which pertains to the “sexual assault”, it appears that it is in two parts. The first part of the Section mentions about the act of touching the specific sexual parts of the body with sexual intent. The second part mentions about “any other act” done with sexual intent which involves physical contact without penetration. Since the bone of contention is raised by Ld. Senior Advocate, Mr. Luthra with regard to the words “Touch”, and “Physical Contact” used in the said section.
- the expression “sexual intent” having not been explained in Section 7, it cannot be confined to any predetermined format or structure and that it would be a question of fact, however, the submission of Mr. Luthra that the expression ‘physical contact’ used in Section 7 has to be construed as ‘skin to skin’ contact cannot be accepted. As per the rule of construction contained in the maxim “Ut Res Magis Valeat Quam Pereat”, the construction of a rule should give effect to the rule rather than destroying it. Any narrow and pedantic interpretation of the provision which would defeat the object of the provision, cannot be accepted. It is also needless to say that where the intention of the Legislature cannot be given effect to, the courts would accept the bolder construction for the purpose of bringing about an effective result. Restricting the interpretation of the words “touch” or “physical contact” to “skin to skin contact” would not only be a narrow and pedantic interpretation of the provision contained in Section 7 of the POCSO Act, but it would lead to an absurd interpretation of the said provision. “skin to skin contact” for constituting an offence of “sexual assault” could not have been intended or contemplated by the Legislature. The very object of enacting the POCSO Act is to protect the children from sexual abuse, and if such a narrow interpretation is accepted, it would lead to a very detrimental situation, frustrating the very object of the Act, inasmuch as in that case touching the sexual or non sexual parts of the body of a child with gloves, condoms, sheets or with cloth, though done with sexual intent would not amount to an offence of sexual assault under Section 7 of the POCSO Act. The most important ingredient for constituting the offence of sexual assault under Section 7 of the Act is the “sexual intent” and not the “skin to skin” contact with the child.
- The act of touching any sexual part of the body of a child with sexual intent or any other act involving physical contact with sexual intent, could not be trivialized or held insignificant or peripheral so as to exclude such act from the purview of “sexual assault” under Section 7.
- The suffering of the victims in certain cases may be immeasurable. Therefore, considering the objects of the POCSO Act, its provisions, more particularly pertaining to the sexual assault, sexual harassment etc. have to be construed vis-a-vis the other provisions, so as to make the objects of the Act more meaningful and effective.
- Section 7 has to be construed as ‘skin to skin’ contact cannot be accepted. As per the rule of construction contained in the maxim “Ut Res Magis Valeat Quam Pereat”, the construction of a rule should give effect to the rule rather than destroying it. Any narrow and pedantic interpretation of the provision which would defeat the object of the provision, cannot be 24 accepted. It is also needless to say that where the intention of the Legislature cannot be given effect to, the courts would accept the bolder construction for the purpose of bringing about an effective result. Restricting the interpretation of the words “touch” or “physical contact” to “skin to skin contact” would not only be a narrow and pedantic interpretation of the provision contained in Section 7 of the POCSO Act, but it would lead to an absurd interpretation of the said provision. “skin to skin contact” for constituting an offence of “sexual assault” could not have been intended or contemplated by the Legislature. The very object of enacting the POCSO Act is to protect the children from sexual abuse, and if such a narrow interpretation is accepted, it would lead to a very detrimental situation, frustrating the very object of the Act, inasmuch as in that case touching the sexual or non sexual parts of the body of a child with gloves, condoms, sheets or with cloth, though done with sexual intent would not amount to an offence of sexual assault under Section 7 of the POCSO Act. The most important ingredient for constituting the offence of sexual assault under Section 7 of the Act is the “sexual intent” and not the “skin to skin” contact with the child.
Case Details:-
CRIMINAL APPEAL NO. 1410 OF 2021 (@ SPECIAL LEAVE PETITION (CRL) NO. 925 OF 2021)
ATTORNEY GENERAL FOR INDIA .... APPELLANT(S)
VERSUS
SATISH AND ANOTHER .... RESPONDENT(S)