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”).
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”).
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Hi everyone.
Welcome to Legal Talks by Desi Kanoon.
I am Suyash and 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 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.
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: -
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.”
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.
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.
Hence, I hope you enjoyed listening to the show.
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