POCSO Act: SC Cancels Bombay HC "Skin To Skin" Verdict As "Grave Error"
The Supreme Court on Thursday rejected a Bombay High Court verdict on the POCSO (Protection Of Children From Sexual Offenses) Act which held that ‘skin to skin’ contact is necessary for an act to be prosecuted under this law. The Bombay HC had set aside the conviction of a man under this act for sexually harassing a 12-year old minor girl. The High Court had reasoned that the accused had to have had contact with the skin of the survivor in order to be convicted under the law.
This decision was announced in January. Many influential people, including the Women’s Commission and Attorney General K.K. Venugopal, took the matter to the Supreme Court. The apex court heard the matter and quashed the High Court’s verdict.
The three-judge Bench comprising of Justices Bela Trivedi, Uday Lalit, and S. Bhatt sad that “intent” of sexual assault should be considered and not whether ‘skin to skin’ contact occurred or not. What Was The Case All About? In 2016, a trial court had sentenced a man to 3 years’ jail under the POCSO act for the sexual assault of a 12-year old girl. The victim’s mother alleged that the accused lured the girl to his house, molested her breasts and tried to take off her pants. This year, on January 12th, Judge Pushpa Ganediwala of the Nagpur branch of Bombay High Court quashed the order of the trial court. She reasoned that the girls’ breasts had been grabbed without taking off her clothes, and therefore the accused could not be convicted under the POCSO Act since his actions did not involve direct contact with her skin. She held that he should be charged with a lesser offence of “molestation”. Opposition To Verdict NCRB data for the past year shows that India registered 43,000 cases under the POCSO Act. That means that on an average, a child faced sexual assault every 12 minutes. Against such a background, this verdict by the Bombay High Court caused anger in many circles. Workers active in child protection and welfare said that such decisions would further encourage perpetrators and children will be left unable to bring forward cases ofsuch incidents against them. Petition Against HC Verdict The National Commission for Women (NCW) and K.K. Venugopal, Attorney General of India, submitted a petition in the Supreme Court against this “insensitive” judgement of the Bombay HC. Venugopal had called the decision “insulting”. He said: “Someone can wear a surgical glove and exploit a child and get away scot-free… This is an outrageous order”. What Did The Supreme Court Say? Setting aside the Bombay High Court verdict, the Supreme Court said that to consider “physical contact” as defined under Section 7 of the POCSO Act to mean “skin to skin contact” is baseless and it will render the Act’s intent to protect children from sexual harassment useless: “The very object of enacting the POCSO Act is to protect the children from sexual abuse, and if such a narrow interpretation is accepted, it would lead to a very detrimental situation, frustrating the very object of the Act, inasmuch as in that case touching the sexual or non sexual parts of the body of a child with gloves, condoms, sheets or with cloth, though done with sexual intent would not amount to an offence of sexual assault under Section 7 of the POCSO Act”. The SC said that it has to be seen whether there was “intent” to commit sexual harassment/assault, and not whether there was contact between the skins of the survivor and perpetrator. The SC slammed the High Court for its verdict and statements and said that the HC had “fallen into a grave error”. It was criticized by the AG for setting “a dangerous precedent”, and its interpretation of ‘assault by touch’ did not consider that the sense of touch is active even when it is experienced indirectly, as in by a spoon or through clothes on the body. The Court has now ordered the perpetrator to surrender within four weeks and reinstated his punishment.
The three-judge Bench comprising of Justices Bela Trivedi, Uday Lalit, and S. Bhatt sad that “intent” of sexual assault should be considered and not whether ‘skin to skin’ contact occurred or not. What Was The Case All About? In 2016, a trial court had sentenced a man to 3 years’ jail under the POCSO act for the sexual assault of a 12-year old girl. The victim’s mother alleged that the accused lured the girl to his house, molested her breasts and tried to take off her pants. This year, on January 12th, Judge Pushpa Ganediwala of the Nagpur branch of Bombay High Court quashed the order of the trial court. She reasoned that the girls’ breasts had been grabbed without taking off her clothes, and therefore the accused could not be convicted under the POCSO Act since his actions did not involve direct contact with her skin. She held that he should be charged with a lesser offence of “molestation”. Opposition To Verdict NCRB data for the past year shows that India registered 43,000 cases under the POCSO Act. That means that on an average, a child faced sexual assault every 12 minutes. Against such a background, this verdict by the Bombay High Court caused anger in many circles. Workers active in child protection and welfare said that such decisions would further encourage perpetrators and children will be left unable to bring forward cases ofsuch incidents against them. Petition Against HC Verdict The National Commission for Women (NCW) and K.K. Venugopal, Attorney General of India, submitted a petition in the Supreme Court against this “insensitive” judgement of the Bombay HC. Venugopal had called the decision “insulting”. He said: “Someone can wear a surgical glove and exploit a child and get away scot-free… This is an outrageous order”. What Did The Supreme Court Say? Setting aside the Bombay High Court verdict, the Supreme Court said that to consider “physical contact” as defined under Section 7 of the POCSO Act to mean “skin to skin contact” is baseless and it will render the Act’s intent to protect children from sexual harassment useless: “The very object of enacting the POCSO Act is to protect the children from sexual abuse, and if such a narrow interpretation is accepted, it would lead to a very detrimental situation, frustrating the very object of the Act, inasmuch as in that case touching the sexual or non sexual parts of the body of a child with gloves, condoms, sheets or with cloth, though done with sexual intent would not amount to an offence of sexual assault under Section 7 of the POCSO Act”. The SC said that it has to be seen whether there was “intent” to commit sexual harassment/assault, and not whether there was contact between the skins of the survivor and perpetrator. The SC slammed the High Court for its verdict and statements and said that the HC had “fallen into a grave error”. It was criticized by the AG for setting “a dangerous precedent”, and its interpretation of ‘assault by touch’ did not consider that the sense of touch is active even when it is experienced indirectly, as in by a spoon or through clothes on the body. The Court has now ordered the perpetrator to surrender within four weeks and reinstated his punishment.
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