Supreme Court, on Monday, quashed a Bombay High Court Judgement which held that 'skin-to-skin' contact is necessary for the offence of sexual assault to be made out under the Protection of Children from Sexual Offences(POCSO) Act.
The court observed that restricting the meaning of expression 'touch' and 'physical contact' under Section 7 of POCSO to "skin to skin contact" would not only be a narrow and pedantic interpretation but will also lead to the absurd interpretation of the provision.
The Attorney General and the National Commission for Women had filed the plea against the now impugned High Court judgement which instead acquitted the perpetrator under section 354 of IPC, a much lesser offence of 'molestation' which also holds lesser punishment.
Where is the term 'skin to skin contact' originally used?
Skin-to-skin contact (SSC), also called Kangaroo care is a technique used in newborn care where babies are kept chest-to-chest and skin-to-skin with a parent, mostly with the mothers. There is evidence that it is effective in reducing infant mortality, the risk of hospital-acquired infection, increasing weight gain, increasing rates of breastfeeding, and other advantages for both mother and baby.
This term describing pure intimacy between a parent and their child got a whole different meaning when it found a mention in one of the controversial judgements of Bombay High Court.
How did the courts of law rule out non-skin to skin contact for sexual assault under POCSO?
In January 2021, the Nagpur Bench of the Bombay High Court had acquitted an accused observing that groping of the breasts of a minor girl over her clothes will not amount to the offence of 'sexual assault' under Section 8 of POCSO. Holding that there should be 'skin to skin' contact to attract the offence under Section 8 POCSO, the High Court instead held that it amounted to molestation, an offence punishable lesser under Section 354 IPC.
In the case, as per the FIR, the accused took the young girl to his house on the pretext of giving her a guava, pressed her breast and attempted to remove her salwar. The mother of the girl reached there and saved her daughter.
Justice Pushpa Ganediwala
Justice Ganediwala was the one who passed the skin to skin contact judgement. Her appointment as an additional judge was approved by the then collegium led by former Chief Justice of India (CJI) Ranjan Gogoi on 16 January 2019.
It was reported that it was cleared even as the two judges, who had in the past served in the Bombay HC, had objected to her appointment in writing.
On 28 January, the present collegium, led by CJI S.A. Bobde in an unusual event, withdrew the recommendation of making her a permanent judge in light of three rulings that Ganediwala made, all of which involved acquittals or reductions of sentences in cases concerning sexual assault. It included her skin to skin contact ruling as well.
On 15 January, Ganediwala set free a 50-year-old man by ruling that holding the hand of a five-year-old girl and unzipping pants in front of her did not amount to a sexual offence under the POCSO Act.
The top court, in its judgement, said that sexual intent is important in such cases and that it can't be taken away from the purview of the Act. The purpose of the law cannot be to allow the offender to escape the meshes of the law, the apex court said.
National Commission for Women said, "The Commission welcomes the Hon'ble Supreme Court's verdict today and believes that the apex court's decision in the matter will uphold the legal and constitutional safeguard for women and children."