Supreme Court quashes skin to skin judgment

Supreme Court quashes ‘skin-to-skin’ judgment of Bombay High Court

The Supreme Court quashed the controversial judgment of the Bombay HC in a case under the POCSO Act, stating 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.

Important observations by the Supreme Court-

  • The act of touching the sexual part of the body or any other act involving physical contact if done with sexual intent would amount to sexual assault within the meaning of section 7 of the POCSO Act.
  • Since the Act does not define ‘touch’ or ‘physical contact’, the dictionary meanings were referred. Act of touch, if done with sexual intent, will be an offence. Most important ingredient is the sexual intent and not the skin-to-skin contact of the child. Sexual intent is a question of fact which is to be determined from the attendant 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.
  • The Construction of rule should give effect to rule rather than destroying it. The intention of legislature cannot be given effect to unless wider interpretation is given do. The purpose of the law cannot be to allow the offender to escape the meshes of the law.

The apex court has issued directions for the accused to surrender in four weeks

– Vaishali Jain, Advocate & Associate – POSH at Work

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