Supreme Court reserves order against Bombay HC’s skin-to-skin POCSO verdict related to sexual assault of minor

The Supreme Court on Thursday reserved its order on a plea against the Bombay High Court judgment, which said that groping a minor without “skin-to-skin contact” cannot be termed as sexual assault, as defined under the Protection of Children from Sexual Offences (POCSO) Act.

A three-judge Bench of Justices Uday Umesh Lalit, S. Ravindra Bhat and Bela M. Trivedi directed both the parties to file their written submissions within three days. 

Amicus Curiae Siddhartha Dave continued his submissions today. He said, “Catching hold of a hand with sexual intent and removal of salwar includes physical contact as per Section 7, sexual intent comes, even otherwise. Legislature categorised four types of touch and other than the Act, the legislature considered the physical touch.” He read a judgment, where the scope of Section 7 was discussed. 

“There is no discussion that skin-to-skin contact is a necessary ingredient of the Section. It goes on the assumption that apart from this, there are various other instances, therefore the Section anyway gets attracted. Therefore, we issue that what we are grappling with, is not something that has engaged the attention of the court,” the Bench opined.

Dave replied, “Yes, even in the case the vagina is touched over the undergarment, the conviction is sustained.” He further quoted other criminal judgments, as to how the intent has to be taken in and these are all examples where the conviction has been upheld.

Senior Advocate Siddharth Luthra, appearing for the accused, put forth his submissions. He said, “The POCSO Act has three terms that are crucial for our consideration, sexual assault in Section 2(1) and 7, aggravated sexual assault 2b and 9, and sexual harassment 2j and 11, please keep the act open mylrods, we have to refer to the act. There is a reason why I am referring to sexual harassment and your lordship will appreciate that, there are certain use, the word sexual intent is very important. Sexual intent is defined under 11 which deals with sexual harassment. These three terms are important and also note 2(2), 2(7) has to be broken up into 4 parts, first is touching 4 objects, vagina, penis, anus or breast or making the child touch and please note these words with sexual intent. It is not defined here, but it is defined under Section 11… read Section 11 of POCSO. So, this is the first part, sexual intent and touching of these 4 objects or making the child touch. Now the second part, which is very important nor does any other act with sexual intent… now see the crucial words.. which involves physical contact. It comes in the second part of the section, not in the first part and that is where the issue of skin to skin will come. 

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Justice S. Ravindra Bhat said, “What does touch mean; touching means simply the touch, now it may mean that something you are wearing over, in that sense if you are wearing a piece of clothing, then you are not really wanting to touch the clothing if there is sexual intent. Therefore, touch needs to be seen in the context in which the Parliament enacted this law, otherwise… I will just directly point out, force, criminal force, it doesn’t get covered therefore, they have refrained from the use of the term assault or force, they have used the word touch, which is why we have to go by the general meaning of touch.|

Learned counsel Siddarth Luthra said, There are two parts to the provision, the first part pertaining to touch whether through a cloth or not, and the second part about physical contact.

Justice Lalit- Mr Luthra understand your submission you appearing for the accused, you are not supporting what the High Court has actually held…. there are observations in the High Court that actually say that the touch in the case. 

“There were four elements of touch, number one, first of all, he holds the hand, number two he touched the breast of course through the cloth, number three he tries to open the salwar and number four is he puts the hand on the mouth of the girl. So far as touching the hands is concerned, putting the hand on the mouth is concerned it is direct skin-to-skin. We don’t know whether, while trying to loosen the salwar, there was an element of touch or not, but we will assume that it was through the cloth. The second one, putting the hand on the breast is also through the cloth, so you are not supporting what has been held in the High Court, that there can be a touch on the breast through a cloth and even then the section will attract the penal code?,” Justice Lalit said. 

Luthra said, “My lords, see the example where a man brushing past another person in a crowd and touches a part of a woman, which can outrage the modesty of a woman.”

Justice Lalit interrupted and added that this is completely accidental, obviously, there is no sexual intent. The present case is definitely different. 

Luthra said, “Whether there was a presence of “sexual intent” or not, these are matters to be decided on individual facts. In this case, he takes the girl to a particular room, closes the door and then does all these acts. Now, these are in the setting or in the facts and circumstances, a court may come to a conclusion that yes the ingredients of, you know, “sexual intent” were satisfied. And take for instance something that you are saying, in a busy locality or in a market somebody just accidentally sort of brushes against a lady, correct? Or a minor; so therefore in those cases, it could be minus that intent, which is, sexual intent. It may have been brushed against a particular part of the body but that makes no difference according to you. So therefore these matters stand on individual facts specific cases, correct?”

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Justice Bhat said, “Physical contact need not be with direct contact, it can be through some other medium, where you use some other medium, where it might be primary without clothing or with clothing. You might touch directly some other neutral part of the body with the intent. Of course, there is a concept of good touch and a bad touch and I think everybody would talk about it that there is a sexual intent in that or not. So if there is sexual intent in a touch, regardless of whether it’s part of these 4 prohibited areas. Whether there is an impediment in the form of clothing or not, and it is sexual contact, in that sense it is physical it would still fall within this because that is the mischief which parliament wished to avoid.”

Yesterday, the Court has opined that it will confined to the “skin-to-skin” part, whether the High Court was right while passing the skin to skin contact is a requirement of the section or not? While hearing the arguments by Amicus Curiae. 

On earlier hearing, AG KK Venugopal had strongly objected to the judgement passed by the Bombay High Courtwhich held ‘skin-to-skin’ contact is necessary to constitute sexual assault under POCSO Act. Terming it “outrageous”, the AG had said that a person wearing surgical gloves can feel the entire body of a woman and get away with punishment.

During the hearing on August 24, the AG had said

“according to me it’s an outrageous judgement so far as POSCO is concerned because the entire story behind the acquitting of the accused of the offence is punishable under Section 8 which says ‘touching the breast’, itself is sufficient. High court says skin to skin contact is required. The punishment under section 8 is minimum 3-5 years and that learned judge appears to think is disproportionate to touching the breast through the top. Not only that, accused also tried to put off the salwar of a child. Milord, consider this whether the pressing of breast and attempt to remove would fall within the definition of sexual assault as described under Section 7 and punishable under Section 8?”

He said, “As per the definition of sexual assault which involves physical contact without penetration to commit sexual assault with sexual intent. Therefore, here the accused had sexual intent while touching the child’s breast, which is physical contact. There is no case if the top was removed or not. The high court had modified the order of a sessions court, which sentenced a 39-year-old man to three years of imprisonment for sexually assaulting a 12-year-old girl.”

Further, he pointed out that there are 43,000 POCSO offences in last one year. “So, tomorrow, any person with surgical gloves who feels the entire body of a woman including her vagina without penetration, then the punishment of 3 years would not apply to him?” He questioned. “This is outrageous and this is setting a precedent. Apparently, the judge did not consider its consequences,” he argued.

The Court had previously also issued notice in a plea filed by National Commission for Women aggrieved by the HC order, and the perverse interpretation adopted by the High Court that the term ‘physical contact’ in Section 7, POCSO Act means only ‘skin to skin touch’. 

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The plea filed by it raised various questions 1. Whether to constitute an offence under Section 7 of the POCSO Act, the only requirement is to touch a child with sexual intent?

2. Whether the impugned order has far reaching ramifications/repercussions for women, exposing them to a desensitized Society?

The petitioner has further submitted that such a narrow interpretation adopted in the impugned order sets a dangerous precedent, which would have a cascading effect on the safety of women and children.

Earlier, the Apex Court had stayed the acquittal of the accused on the matter after it was mentioned by Attorney General K.K. Venugopal.

On January 19, the Nagpur bench of Bombay High Court had acquitted a man of sexual assault on the grounds that pressing the breasts of a child over her clothes without direct ‘skin-to-skin’ physical contact does not constitute “sexual assault” under the POCSO Act.

The bench dismissed another petition filed by Bharatiya Stree Shakti challenging the same order while stating that the petitioner did not have locus in the present case.