S.7 OF THE POCSO ACT, 2012; IS SKIN-TO-SKIN CONTACT A PRE-REQUISITE?

1.     The Nagpur Bench of the Hon’ble High Court of Bombay had recently passed an observation while considering an appeal which involved a POCSO offence. The observation of the court in Satish v State of Maharashtra[1] was that the act of pressing of the breast of a child aged 12 years in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside her top and pressed her breast would not fall in the definition of ‘sexual assault’ as envisaged in Section 7 of the POCSO Act, 2012. Or in other words, unless there is skin to skin contact, the offence under POCSO doesn’t get attracted and at the most if there’s physical contact without actually disrobing, at the most it should fall under S.354 of the IPC and not that under the former.

2.     The POCSO Act was implemented as a landmark legislation for the protection of child rights and to prevent the sexual abuse and exploitation of children in the country. The Statement of Reasons and Objects of the Act would specifically state that the act is a manifestation of the policy of the State to prevent the tenderness of children from being abused and their childhood and youth are protected against children.

3. Section 7 of the POCSO Act states that

“Whoever with sexual intent touches the vagina, penis, anus or breast of 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.”  

4.     In Satish v State of Maharashtra, the single judge had considered the question whether the ‘pressing of breast’ and ‘attempt to remove salwar’ would fall within the definition of ‘sexual assault’ as defined under Section 7 and punishable under Section 8 of the POCSO Act. Answering the said question in the negative, the court held that the act of pressing of breast of the child aged 12 years in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of ‘sexual assault’ but would certainly fall within the definition of the offence under Section 354 of the Indian Penal Code as there was no direct physical contact, i.e, skin to skin contact.

5.     The above interpretation of Section 7 by the Bombay HC seems problematic as it would take the act of touching a minor’s body parts not involving any skin contact out of the purview of the legislation and place it under the ambit of the general IPC offences. This interpretation cannot be correct as the lawmakers had in the Statement of Objects and Reasons of the Act stated that it was supposed to be a 'comprehensive' legislation. It was so observed in Independent Thought v UOI and Anr[2] that the POCSO Act was supposed to be

‘…a self-contained comprehensive legislation inter alia to provide for protection of  children from the offences of sexual assault, sexual harassment and pornography….’.

6.     The apex court made the above observation while analysing the Statement of Objects and Reasons of the POCSO Act. When the word ‘comprehensive’ is being used in its object, the intention of the lawmakers could only have been to create a legislation that would cover any act or any offence of a sexual nature perpetrated against a minor. It is assumed that when a legislation enacts a law, the legislature would have considered all possible outcomes and scenarios that could get in the way of its implementation Unless expressly stated so it cannot be understood that they intended to take sexual offences involving non-direct physical contact was to be taken outside the consideration of the Act.

7.     If such an interpretation which makes skin to skin contact a pre-requisite for attracting an offence under S.7 is to hold field, then technically even a man groping a minor child by wearing hand gloves would also take the said act out of its ambit, which would be absurd. It was recently held by a full bench of the honourable Supreme Court in Eera v State[3] , that

‘when two constructions are possible preference should be gone to one which helps to carry out the beneficent purpose of the Act.’

Construing the provision under Section 7 in such a manner would not advance the objective of the legislation for which it was enacted in the first place but would rather defeat it.

8.     Moreover, on another consideration it couldn’t be said that a minor girl distinguishes between being groped over her clothes or beneath them. Either way, the trauma remains the same. Such an act could seriously hamper their overall development which is one of the objects which the Act seeks to achieve. In such circumstances Section 7 should be so construed so that it takes into its ambit non-direct physical contact along with a direct contact.

9.     In light of the above points with all due respect, I beg to differ with the said view taken by the honourable High Court and believe that the said position needs reconsideration.

References

[1] Crl. Appeal No. 161 of 2020, Bom HC (Nagpur Bench), available at : https://www.livelaw.in/pdf_upload/pressing-a-childs-breast-without-skin-to-skin-contact-does-not-amount-to-sexual-assault-under-pocso-act-bombay-high-court-388064.pdf

[2] 2017 (10) SCC 800

[3] 2017 (15) SCC 133