Restricting ‘Touch’ Or ‘Physical Contact’ Only To ‘Skin To Skin’ Contact Absurd
Case: Attorney General for India versus Satish and another
Coram: Justice Uday Umesh Lalit, Justice S Ravindra Bhat and Justice Bela Trivedi
Case No.: Criminal Appeal No. 1410 – 1414 Of 2021
Court Observation: “For the interpretation of S.7 of the POCSO Act, we have referred to the dictionary and held that the word touch has been referred to with reference to the special 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 if done with sexual intent would amount to sexual assault within the meaning of S.7 of the POCSO Act”
“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 need to interpret a statute in the context of the circumstances that resulted in its birth…Thereby I have moved down to the mischief rule, the circumstances which led to this legislation, the previous avtars which this law underwent. 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 and also if there is a legitimate non-sexual purpose for the contact. It is also elevant to see the conduct of the offender before and after the contact. In this regard it is always useful to keep in mind that sexual intent is not defined but fact dependent. The fallacy in the High Court’s reasoning is that is assumes that indirect touch is not covered by S.7 or is not touch at all. That provision is meant to cover both direct and indirect touch. The use of a spoon for an instance, without touching it with the hand, in no way diminishes the sense of touch experienced by the lips and the mouth. Similarly, when a stick or other object is pressed onto a person even when clothed, their sense of touch is keen enough to feel that”.
“…the reasoning in the High Court’s judgment quite insensitively trivializes – indeed legitimizes -an entire range of unacceptable behaviour which undermines a child’s dignity and autonomy, through unwanted intrusions. The High Court, therefore clearly erred in acting on such interpretation, and basing its conviction of and awarding sentence to the respondents; as it did they were guilty of sexual assault”
“I think this is the first time the Attorney General has challenged a judgment on the criminal side. Also this is the first time brother and sister opposed each other”
“there is no direct physical contact i.e. skin to skin with sexual intent without penetration”. “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'”
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