The Supreme Court has on Thursday ruled that skin-to-skin contact is not essential for it to be an POCSO offence as held by Bombay High Court‘s Nagpur Bench.
The Apex Court’s three-judge bench of Justices U.U. Lalit, Justices S. Ravindra Bhat and Bela M. Trivedi set aside the high court judgment saying the most important ingredient of constituting sexual assault is sexual intent and not skin-to-skin contact with the child.
The purpose of the law cannot be to allow the offender to escape the meshes of the law, the apex court said.
The court also said that giving narrow meaning of physical contact to confine it to skin-to-skin contact would defeat the purpose of POCSO Act and it cannot be accepted.
Justice Shripathi Ravindra Bhat quoted Justice Benjamin Cardozo, “The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by.”
Speaking for the bench, Justice Bela M. Trivedi, who authored the judgment, observed the purpose of law is not to allow the offender to sneak out of the mesh of law. When legislature had clarified its intent, the court should not introduce ambiguity, Trivedi said.
For interpreting Section 7 of the POCSO Act, we have referred to the dictionary meaning and then held that the word “touch” has been used specifically with regard to sexual parts of the body whereas the word physical contact has been used for any other act. Therefore, the act of touching the sexual part of the body or any other act involving physical contact if done with sexual intent could amount to sexual assault within the meaning of Section 7 of the POCSO ACT, Justice Trivedi said.
Adding to Justice Trivedi’s analysis, Justice Ravindra Bhat took note of the fact that one cannot be unmindful of the circumstances in which the previous provisions like Section 354 existed from colonial times when women’s agency itself unacknowledged or had limited recognition.
Further, women in India were traditionally, during the time of enactment of the IPC in the mid-19th century subordinated to the care of their fathers or husbands or other male relatives. They had no share in immovable property, gender equality was unheard of, and women had no right to vote.
It is therefore no part of a judge’s duty to strain the plain language of a statute beyond recognition to the point of its destruction, thereby, denying the cry of the times. The children desperately need the assurance of the law designed to protect their autonomy and dignity as POCSO does.
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The punishment for sexual assault under Section 8 of the POCSO Act is imprisonment of 3 to 5 years where the punishment under Section 354 of IPC is imprisonment of 1 to 5 years.
The judgement by Nagpur bench Justice Pushpa Ganediwala of January this year had been appealed against by attorney General K.K. Venugopal after widespread outrage among lawyers and the general public over the verdict which had said skin-to-skin contact was necessary to attract POCSO provisions.
Read order below
2286_2021_32_1501_31537_Judgement_18-Nov-2021