SC cancels Bombay HC’s controversial judgment; says skin to skin contact not necessary for crime under POCSO

Setting aside Bombay High Court’s controversial judgment, the Supreme Court today ruled that “skin to skin” contact is not necessary for a crime to be considered under the Protection of Children from Sexual Offences (POCSO) Act.

The court said that physical contact made with sexual intent comes under POCSO, and “skin to skin” contact is not the criteria. 

Attorney General KK Venugopal had opposed the Bombay HC verdict arguing that the court’s interpretation would mean that “someone can wear a surgical glove and exploit a child and get away scot-free”. He had added that it will be treated as precedent and the result will be “devastating”.

Senior Advocate Sidharth Luthra had argued for the accused and said, “sexual intent requires physical contact but, in this case, the clothing was touched not the skin.”

What is POCSO Act?

POCSO Act defines sexual assault as when someone “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”.  

The SC had questioned the interpretation of touch during the hearings. “What does touch mean, simply a touch? Even if you’re wearing a piece of clothing, they’re not trying to touch clothing. We must see touch in the meaning that Parliament intended,” the Court noted. 

“We have held that when the legislature has expressed clear intention, the courts cannot create ambiguity in the provision. It is right that courts cannot be overzealous in creating ambiguity,” the bench, comprising of Justices UU Lalit, SR Bhat, and Bela M Trivedi said. 

Who had challenged it?

The Attorney General, National Commission of Women, State of Maharashtra, and Youth Bar Association of India had challenged the Bombay HC order stating that such observations would have a wide impact on the entire society and public at large.

“The most important ingredient for constituting the offence of sexual assault is sexual intent and not skin-to-skin contact with the child. The construction of a rule should give effect to the rule rather than destroy it. Any narrow interpretation of the provision which would defeat its object cannot be accepted. The intention of the legislature cannot be given effect unless the wider interpretation is given,” the bench said.

The court said this is the first time that the Attorney General had filed an appeal on the criminal side.

Senior advocate Sidharth Luthra appeared for the convict in the case as an amicus curiae, while his sister, senior advocate Geeta Luthra, appeared for the National Commission of Women. The Supreme Court said this time a brother and sister have also opposed each other.

On January 27, the SC had stayed the January 19 verdict of the Nagpur bench of the Bombay High Court after the Attorney General had mentioned it before the SC. He was allowed to file an appeal against the verdict.