Pocso Act: Skin-To-Skin Orders Of Bombay HC Laid To Rest
Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator.
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By Sunil Garodia
First publised on 2021-11-19 10:29:18
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Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator.
View all posts by this Author
After rightly staying the skin-to-skin orders of the Bombay HC in January this year, the Supreme Court has rightly quashed the same now. In an order that will remind the lower judiciary that a narrow interpretation of the law always defeats its purpose, the Supreme Court today said that courts using a narrow interpretation of the term "physical contact" in the Pocso Act and giving the accused the benefit of doubt were not protecting children from sexual assault and hence diluting the purpose of the Act.
The court said that "the act of touching any sexual part of the body of a child with sexual intent or any other act involving physical contact with sexual intent could not be trivialized or held insignificant or peripheral so as to exclude such act from the purview of 'sexual assault' under Section 7". It then went on to note that if this was done then people using gloves, cloth or making contact with a fully-clothed child or even using condoms would walk free on the plea that skin-to-skin contact was not made.
Section 7 of POCSO Act says: Sexual assault - 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.
The operative words here are physical contact and sexual intent. Physical contact is described in various dictionaries as "the act of touching physically". It does not matter if the person touched is fully clothed or naked or whether skin contact was made. If two fully clothed persons hug, it would be physical contact and if a person even touches the arm of another while talking it would be physical contact. Then how could a person groping the breast of a child who might be wearing several layers of clothing not count as physical contact and by that token and as per the definition in section 7 of the Act, not be sexual assault?
The Supreme Court has rightly chosen to go for a wider interpretation in order to ensure that children are protected from sexual assault, to uphold the intention behind the law. Lower courts would do well to keep this in mind in all cases.
