INTRODUCTION
Today, I will talk about the case of Attorney
General for India v. Satish & Another, Criminal Appeal No. 1410 of
2021, wherein the Hon’ble Supreme Court discussed the requirement of ‘skin to
skin’ contact of the victim and the accused to attract Section 7 of the
Protection of Children from Sexual Offences Act, 2012 that provides for the
definition of ‘sexual assault’ (in short, “POCSO”).
SECTION 7
Section 7 of POCSO states that “whoever,
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 is said to commit sexual assault.”
Thus, we see that Section 7 has two parts. The first
part provides that whoever with sexual intent touches the private parts of a
child or makes the child touch the private parts of such person is said to have
committed sexual assault. And the second part provides that whoever does any act
with sexual intent which involves physical contact without penetration is said
to have committed sexual assault. Basically, all acts that are done with sexual
intent involving physical contact excluding penetration, are covered within the
ambit of Section 7.
QUESTIONS OF LAW
In this case, a question arose that whether ‘skin
to skin’ contact of the victim and the accused is necessary and mandatory to attract
the provisions of Section 7 of POCSO or not. In this regard, the Court made the
following observations: -
OBSERVATIONS BY THE COURT
Firstly, the Court observed that “the use of
the expression ‘touch’ appears to be common, to the first and second parts”
of Section 7. Touch means “to put your hand or another part of your body
lightly onto and off something or someone.” It is also said that “your
sense of touch is your ability to tell what something is like when you feel it
with your hands.”
Secondly, the Court explained that the term ‘contact’
used in the second part of Section 7 has a much wider connotation and
encompasses ‘touch’ within its ambit. The second part uses the expression ‘physical
contact’ that “means something which is of wider import than ‘touching’”
and “physical contact without penetration, may not necessarily involve
touch.” Such acts involving physical contact may even involve the
victim being coerced to touch oneself.
Thirdly, the Court noted that the “parliamentary
intent and emphasis, is that the offending behaviour, should be motivated with
sexual intent” and “the circumstances in which touch or physical
contact occurs would be determinative of whether it is motivated by ‘sexual
intent’.”
Fourthly, the Court clarified that an interpretation
suggesting that ‘touch’ cannot involve contact with sexual body parts through clothes
is not appropriate and “such an interpretation not merely limits the
operation of the law but tends to subvert its intention. It has the effect
of “inventions and evasions” meant to continue the mischief, which Parliament
wished to avoid.”
And lastly, the Court cautioned that “it is,
therefore, no part of any judge’s duty to strain the plain words of a statute,
beyond recognition and to the point of its destruction, thereby denying the cry
of the times that children desperately need the assurance of a law designed to
protect their autonomy and dignity, as POCSO does.”
HELD BY THE COURT
Therefore, upon cumulative consideration of the
aforesaid arguments, the Court held that “neither Section 7 nor any other
provision of POCSO even remotely suggests that ‘direct’ physical contact unimpeded
by clothing is essential for an offence to be committed” and that no ‘skin
to skin’ contact is necessary to attract Section 7 of POCSO.
SUMMARY AND CONCLUSION
In conclusion, following important points emerge:
-
a. Section 7 deals with sexual assault and all
acts that are done with sexual intent involving physical contact excluding penetration,
are covered within its ambit.
b. “Physical contact without penetration,
may not necessarily involve touch.”
c. ‘Touch’ can involve contact with sexual body
parts through clothes as well.
d. The intention of the legislature is to protect
the autonomy and dignity of children and any interpretation suggesting that ‘skin
to skin’ contact is essential to attract S. 7 is not proper.
Thus, I hope that the mandate of Section 7 of POCSO and the conundrum relating to ‘skin to skin’ contact is clear by now.
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