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‘Grave error, unacceptable’ — why SC set aside Bombay HC’s ‘skin-to-skin’ contact POCSO verdict

Court says limiting the meaning of 'touch' or 'physical contact' in Section 7 of POCSO Act to 'skin-to-skin contact' would narrow and pedantic, lead to 'absurd interpretation'.

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New Delhi: The Supreme Court Thursday set aside two controversial judgments passed by the Nagpur bench of the Bombay High Court in January this year, interpreting sexual assault provisions under the Protection of Children from Sexual Offences (POCSO) Act in a manner that was called “bizarre”, “not legally sound” and “absurd” by legal experts.

The first high court judgment was passed on 15 January, by Justice Pushpa Ganediwala, freeing a 50-year-old man by ruling that holding the hand of a five-year-old girl and unzipping pants in front of her was not sexual assault under the POCSO Act.

The second judgment was pronounced by the same judge on 19 January, interpreting sexual assault under the POCSO Act to include only “skin-to-skin” contact with sexual intent.

The Supreme Court, however, now asserted that the high court judge had “fallen into a grave error” in arriving at the judgments, and set them aside. The court was hearing appeals filed by the Attorney General of India, the National Commission for Women and the Maharashtra government.

In its verdict, the bench comprising Justices U.U. Lalit, S. Ravindra Bhat and Bela M. Trivedi asserted that in order to prove sexual assault under Section 7 of the POCSO Act, the prosecution would not be required to prove “skin-to-skin” contact.

It asserted that “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”.

Section 7 of the Act says that a person commits sexual assault if he or she “with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent, which involves physical contact without penetration”.

In his concurring opinion, Justice Bhat called Justice Ganediwala’s interpretation of the law “unacceptable” and ruled that Section 7 is meant to cover both direct and indirect touch.

Also read: Tale of 2 charge sheets in POCSO case: Why court pulled up Delhi Police for ‘treachery, fraud’

Objective behind enacting POCSO Act

The court began by looking at the objective behind enacting the POCSO Act and asserted that adopting such an interpretation of the provision would defeat the purpose of the law.

“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,” it observed.

It asserted that 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 court further considered the impact that sexual assault has on children, observing that it “cannot be oblivious to the fact that the impact of traumatic sexual assault committed on children of tender age could endure during their whole life, and may also have an adverse effect on their mental state”.

“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 court further observed.

The two cases

The 15 January judgment was passed on an appeal filed by the accused challenging a trial court’s order that convicted him for sexually assaulting a five-year-old girl.

According to the complaint, the accused, Libnus, had trespassed into a woman’s house and molested her five-year-old daughter in February 2018. On returning from her work, the woman alleged that she saw Libnus in the house, holding her daughter’s hand and trying to take her to one of the rooms in her house.

According to the judgment, the woman alleged that her daughter informed her that the accused exposed himself and “asked her to come to the bed for sleeping”. The mother also “noticed that the zip of the pants of the appellant/accused (Libnus) was opened”.

While the trial court had convicted Libnus in October last year, the high court felt that the allegations did not fit into the definition of sexual assault under POCSO Act, observing, “The acts of ‘holding the hands of the prosecutrix’, or ‘opened zip of the pant’ as has been allegedly witnessed by PW-1 (the girl’s mother), in the opinion of this court, does not fit in the definition of ‘sexual assault’.”

In a judgment passed on 19 January, Justice Ganediwala acquitted one Satish under Section 7 (sexual assault) of the POCSO Act, while ruling that the act of groping a child’s breast, without any skin-to-skin contact and sexual intent, is not sexual assault under the law.

“The act of pressing of breast of the child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of ‘sexual assault’,” Ganediwala’s judgment had said.

It asserted that physical contact for sexual assault under Section 7 of the POCSO Act would mean “direct physical contact i.e. skin to skin”.

The court pointed out that it wasn’t the prosecution’s case that Satish “removed her top and pressed her breast”. It then opined that this would fall under Section 354 (assault of criminal force on a woman with intent to outrage her modesty) of the Indian Penal Code (IPC), and convicted Satish under this provision instead.

This led to his punishment being reduced from a three-year rigorous imprisonment — the minimum under Section 8 of the POCSO Act, which lays down punishment for offences listed under Section 7 — to a year’s rigorous imprisonment, the minimum under Section 354.

Also read: Calcutta HC says voluntary sexual acts with minors won’t be POCSO case, acquits rape accused

Cost her permanent judgeship

The two judgments had cost Justice Ganediwala confirmation of her judgeship. On 28 January this year, when she was due to bee appointed as a permanent judge of the court, in a rare move, the Supreme Court collegium withdrew its proposal sent to the government to confirm her.

Accordingly, the central government had extended her tenure as an additional judge for another year instead of making her permanent, on 13 February.

According to an earlier report by ThePrint, two sitting Supreme Court judges, who had served in the Bombay High Court in the past, had also expressed reservations against her elevation as an additional judge of the Bombay HC in 2019.

The two judges had provided a detailed analysis in 2017-18 of the judgments she had authored in the trial courts to demonstrate her “lack of knowledge of the law”. However, the collegium disregarded the reservations and cleared her name for appointment as a judge of the Bombay HC on 16 January 2019.

(Edited by Neha Mahajan)

Also read: Consensual sex with major not offence but unethical, immoral, Allahabad HC says


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