“Sexual Intent”: Supreme Court Rejects “No Skin-to-Skin Contact” Order

The Supreme Court had questioned the interpretation of touch during the hearing.

New Delhi:

The Supreme Court today ruled that “skin-to-skin” contact is not necessary to be considered an offense under the Protection of Children from Sexual Offenses (POCSO) Act. Calling it a “narrow interpretation of law”, the court set aside a Bombay High Court judgment, which acquitted a man, saying “the breast of a minor without ‘skin-to-skin contact’ Groping cannot be called sexual assault under POCSO”.

Stating that the object of POCSO is to protect children from sexual abuse, the court held that physical contact with sexual intent is covered under POCSO, and “skin to skin” contact is not the norm.

Attorney General KK Venugopal had opposed the Bombay HC’s decision, arguing that the court’s interpretation would mean that “one can wear surgical gloves and exploit a child and escape”. He had said that this would be taken as an example and the result would be “disastrous”.

Senior advocate Siddhartha Luthra had argued for the accused and said, “Sexual intent requires physical contact, but in this case, the clothing was not touched by the skin.”

The POCSO Act defines sexual assault as “when someone with sexual intent touches the vagina, penis, anus or breast of a child or the child touches the vagina, penis, anus or breast of such person or any other person, or any other commits acts with sexual intent which include physical contact without penetration, is said to commit sexual assault”.

The Supreme Court had questioned the interpretation of touch during the hearing. The Court said, “What is meant by touch, just a touch? Even if you are wearing a piece of cloth, they are not trying to touch the clothes. We should look at touch in the sense that Parliament intended.” ”

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

The Attorney General, National Commission for Women, Maharashtra State and the Youth Bar Association of India had challenged the Bombay HC order, saying such comments would have a cascading effect on the entire society and the public at large.

“The most important component to constitute the offense of sexual assault is sexual intent and not skin-to-skin contact with the child. The formulation of a rule should make the rule effective rather than destroy it. Any narrow interpretation of the provision which is Its purpose cannot be defeated. The intention of the legislature cannot be given effect unless a comprehensive interpretation is given,” the bench said. The court said this was the first time the Attorney General had filed an appeal on the criminal side.

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

On January 27, the Supreme Court had stayed the January 19 judgment of the Nagpur Bench of the Bombay High Court, when the Attorney General mentioned it before the SC. He was allowed to file an appeal against the decision.

Mr Venugopal had submitted the matter before the SC while mentioning that the HC’s decision is “unprecedented” and likely to set a “dangerous precedent”.

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