Supreme Court clarifies “Sexual Assault” under POCSO Act: No Skin-to-Skin Contact Required in POCSO Cases (18 November 2021)

Date of the Judgment: 18 November 2021
Citation: 2021 INSC 740
Judges: Uday Umesh Lalit, J. and Bela M. Trivedi, J. (authored the majority opinion) and S. Ravindra Bhat, J. (concurring opinion).
Can an act be considered “sexual assault” under the POCSO Act if there is no direct skin-to-skin contact? The Supreme Court of India recently addressed this critical question, clarifying the scope of “sexual assault” under the Protection of Children from Sexual Offences Act, 2012. The court held that “skin-to-skin” contact is not a necessary condition for an act to be considered sexual assault. This judgment is a landmark decision that has far-reaching implications for child protection laws in India. The majority opinion was authored by Justice Bela M. Trivedi, with a concurring opinion by Justice S. Ravindra Bhat.

Case Background

The Supreme Court was hearing a batch of appeals relating to two separate cases, one involving an accused named Satish and another involving an accused named Libnus. Both cases involved allegations of sexual assault against children, and both were decided by the High Court of Judicature at Bombay, Nagpur Bench.

Case of Satish: The Extra Joint Additional Sessions Judge, Nagpur, convicted Satish on 5th February 2020 for offences under Sections 342, 354, and 363 of the Indian Penal Code (IPC) and Section 8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The victim was a 12-year-old girl. The prosecution’s case was that on 14th December 2016, Satish took the victim to his house under the pretext of giving her a guava, pressed her breast, attempted to remove her salwar, and pressed her mouth when she tried to shout. The High Court acquitted Satish under Section 8 of the POCSO Act but convicted him under Sections 342 and 354 of the IPC.

Case of Libnus: The Additional Sessions Judge, Gadchiroli, convicted Libnus on 5th October 2020 for offences under Sections 448 and 354-A (1)(i) of the IPC and Sections 8 and 10 read with section 9 (m) and 12 of the POCSO Act. The victim was a 5-year-old girl. The prosecution’s case was that on 11th February 2018, Libnus entered the victim’s house, held her hands, moved her frock upward, lowered her pant, unzipped his pant, showed his penis to her, and asked her to lay down on a wooden cot. The High Court maintained the conviction under Sections 448 and 354-A(1)(i) of the IPC read with Section 12 of the POCSO Act but set aside the conviction under Sections 8 and 10 of the POCSO Act.

Timeline

Course of Proceedings

In both cases, the trial courts convicted the accused based on the evidence presented by the prosecution. However, the High Court took a different view in both cases.

Satish’s Case: The High Court acquitted Satish of the offence under Section 8 of the POCSO Act, stating that the act of pressing the breast of the child, without any specific details as to whether the top was removed or whether he inserted his hand inside the top and pressed her breast, would not fall in the definition of “sexual assault”. It convicted him for the minor offences under Sections 342 and 354 of the IPC. The High Court reasoned that there was no direct physical contact i.e. “skin to skin” with sexual intent.

Libnus’s Case: The High Court set aside the conviction of Libnus for the offences under Sections 8 and 10 of the POCSO Act. The High Court stated that the acts of holding the hands of the prosecutrix or opening the zip of the pant did not fit in the definition of “sexual assault”. However, the High Court maintained the conviction for the offences under Sections 448 and 354-A(1)(i) of the IPC read with Section 12 of the POCSO Act. The High Court modified the sentence to the extent he had already undergone and directed to set him free.

The Attorney General for India, the National Commission for Women, and the State of Maharashtra filed appeals before the Supreme Court challenging the High Court’s interpretation of the POCSO Act. The accused, Satish, also filed an appeal challenging his conviction under Sections 342 and 354 of the IPC.

Legal Framework

The Supreme Court examined the following key legal provisions:

• Section 7 of the POCSO Act: Defines “sexual assault” as “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.”
• Section 8 of the POCSO Act: Specifies the punishment for sexual assault, which is imprisonment for a term not less than three years but which may extend to five years, and shall also be liable to fine.
• Section 9(m) of the POCSO Act: Defines “aggravated sexual assault” as “whoever commits sexual assault on a child below twelve years.”
• Section 10 of the POCSO Act: Specifies the punishment for aggravated sexual assault, which is imprisonment for a term not less than five years but which may extend to seven years, and shall also be liable to fine.
• Section 11 of the POCSO Act: Defines “sexual harassment” as “A person said to commit sexual harassment upon a child when such person with sexual intent – (i) – utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or (ii)makes a child exhibit his body or any part of his body so as it is seen by such person or any other person.” The explanation to this section states that “Any question which involves ‘sexual intent’ shall be a question of fact.”
• Section 12 of the POCSO Act: Specifies the punishment for sexual harassment, which is imprisonment for a term which may extend to three years and shall also be liable to fine.
• Section 29 of the POCSO Act: States that when a person is prosecuted for committing an offence under Sections 3, 5, 7, and 9, the Special Court shall presume that such person has committed the offence unless the contrary is proved.
• Section 30 of the POCSO Act: States that in any prosecution for any offence under the Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state. It also clarifies that “culpable mental state” includes intention, motive, knowledge of a fact, and the belief in, or reason to believe, a fact.
• Sections 342, 354, and 363 of the IPC: These sections deal with wrongful confinement, assault or criminal force to a woman with intent to outrage her modesty, and kidnapping, respectively.

The Court noted that the POCSO Act was enacted to protect children from sexual abuse, sexual harassment, and pornography, as existing laws were inadequate.

Arguments

The following arguments were presented before the Supreme Court:

• Attorney General for India: The High Court erred in acquitting Satish by misinterpreting Section 7 of the POCSO Act. All acts of Satish, including taking the victim to his house, trying to remove her salwar, pressing her breast, and pressing her mouth, amount to “sexual assault”. The interpretation of the High Court was too narrow and would have a devastating effect on society.
• National Commission for Women: The POCSO Act was enacted to protect children from sexual offences. The High Court’s interpretation of “physical contact” as “skin-to-skin contact” is incorrect. The words “touch” and “physical contact” have been used interchangeably by the legislature. The principle of “ejusdem generis” should not be applied if it defeats the object of the enactment.
• Amicus Curiae: The most important aspect of Section 7 is “sexual intent”. The section has two parts: the first pertains to touching specific body parts with sexual intent, and the second pertains to “any other act” with sexual intent involving physical contact. The Court should presume the existence of a culpable mental state on the part of the accused.
• State of Maharashtra: Supported the arguments of the Attorney General and the National Commission for Women.
• Accused (Satish and Libnus): The phrase “sexual intent” has not been defined in the POCSO Act, and the expression “physical contact” used in Section 7 has to be construed as “skin to skin” contact. The presumption under Sections 29 and 30 of the POCSO Act makes it difficult for an accused to prove his innocence. The Rule of Lenity should be invoked, and the statute should be strictly construed against the State.

Submissions of Parties

Issues Framed by the Supreme Court

The Supreme Court considered the following issues:

1. What is the true interpretation of the expression “with sexual intent touches the vagina, penis, anus or breast of the child” under Section 7 of the POCSO Act?
2. Whether the act of touching the sexual part of the body of a child with sexual intent or any other act involving physical contact with sexual intent, could be trivialized or held insignificant so as to exclude such act from the purview of “sexual assault” under Section 7 of the POCSO Act?

Treatment of the Issue by the Court

Authorities

The Supreme Court relied on the following authorities:

Judgment

The Supreme Court held that the High Court erred in its interpretation of Section 7 of the POCSO Act. The Court clarified that “skin-to-skin” contact is not necessary for an act to be considered sexual assault. The most important ingredient for constituting the offence of sexual assault is the “sexual intent” and not the “skin to skin” contact with the child.

The Court also held that the High Court’s application of the principle of “ejusdem generis” was incorrect. The Court stated that the principle should not be applied where it would defeat the very legislative intent.

The Court emphasized the importance of protecting children from sexual abuse and the need to interpret the provisions of the POCSO Act in a way that achieves the objectives of the Act.

The Court also noted that the High Court had erred in not applying the statutory presumptions under Sections 29 and 30 of the POCSO Act. The Court stated that the prosecution had proved the sexual intent on the part of the accused, and the accused had failed to rebut the presumption.

How each authority was viewed by the Court:

The Court relied on the judgments of various High Courts and foreign courts to highlight that “skin-to-skin” contact is not required to constitute an offence of sexual assault. The Court also relied on its own previous judgments on statutory interpretation and the mischief rule to interpret the provisions of the POCSO Act.

• J.P. Bansal vs. State of Rajasthan & Anr. [AIR (2003) SC 1405]: The court used this case to highlight the principles of statutory interpretation and how the intention of the legislature should be gathered from the language used in the statute.
• Balaram Kumawat Vs. Union of India & Ors. [(2003) 7 SCC 628]: The court used this case to highlight the principles of statutory interpretation and how the law would have to be interpreted having regard to the subject matter of the offence and to the object of the law it seeks to achieve.
• Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. & Ors. [(1987) 1 SCC 424]: The court used this case to emphasize the need to interpret statutes in the context of their enactment and to understand the scheme of the entire Act.
• Heydon’s case [76 ER 637]: The court used this case to apply the mischief rule of interpretation, which involves examining the state of the law before the enactment, the mischief the law sought to remedy, and the remedy provided by the law.
• Kanwar Singh v. Delhi Administration [1965 (1) SCR 7]: The court used this case to highlight that the court can depart from the dictionary meaning or eventhe popular meaning of the word and instead give it a meaning which will advance the remedy and suppress the mischief.
• Swantraj & Ors. v. State of Maharashtra [(1975) 3 SCC 322]: The court used this case to highlight that judicial construction seeks to decipher the statutory mission, language permitting, taking the cue from the rule in Heydon’s case of suppressing the evil and advancing the remedy.
• Eera v. State (NCT of Delhi) [2017 (15) SCC 133]: The court used this case to commend and apply the mischief rule specifically in relation to POCSO.
• Rupan Deol Bajaj v. K.P.S Gill [(1995) 6 SCC 194]: The court used this case to note that the expression “modesty” was another limitation as older decisions show that such a state was associated with decorousness of women.
• Kalias & Ors. v. State of Maharashtra [(2011) 1 SCC 293]: The court used this case to highlight that the abhorrent argument that a tribal woman’s ‘modesty’ was distinct owing to the ‘inferiority’ of tribal people who live in torn clothes or no proper clothes was rejected for being totally unacceptable in modern India.
• Alakh Alok Shrivastava v. Union of India [(2018) 17 SCC 291]: The court used this case to highlight the fundamental concept under Art. 15 of the Constitution that empowers the state to make special provisions for children and also Article 39(f) which provides that the state shall in particular direct its policy towards securing that the children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.
• Regina v. H [(2005) 1 WLR 2005]: The court used this case to note that the touching of clothing would constitute “touching” for the purpose of said Section 3 of the Sexual Offences Act, 2003 as in force in U.K.
• State of Iowa V. Walter James Phipps [442 N.W.2d.611]: The court used this case to note that a lack of skin-to-skin contact alone does not as a matter of law put the defendant’s conduct outside the definition of “sex act” or “sexual activity”.
• State of Iowa v Kris Kanon Pearson [514 NW 2d 452 (Iowa 1994)]: The court used this case to highlight that prohibited contact occurs when: (i) specified body parts or substitutes touch and (ii) intervening material would not prevent participants, viewed objectively, from perceiving that they had touched.
• Dulal Dhar v. State of Tripura [2015 SCC Online Trip 188]: The court used this case to highlight that pulling the girl’s uniform involves physical contact with sexual intent.
• Tushar Singha v. State of Tripura [Crl. (A) J/2/2020, decided on 04.05.21]: The court used this case to highlight that touching the breast of a child victim constituted sexual assault under Section 7, punishable under Section 8.
• Jitender v. State [Crl. (A) 564/2019 decided on 19.03.20]: The court used this case to highlight that touching the breast of a child victim constituted sexual assault under Section 7, punishable under Section 8.
• Rakesh v. State (GNCTD) [2018 SCCOnline Del 1179]: The court used this case to highlight that touching the breast of a child victim constituted sexual assault under Section 7, punishable under Section 8.
• Sakshi vs. Union of India [(2004) 5 SCC 518]: The court used this case to highlight that the Penal Statute enacting an offence or imposing a penalty has to be strictly construed.
• R. Kalyani vs Janak C. Mehta & Ors [(2009) 1 SCC 516]: The court used this case to highlight that the Penal Statute enacting an offence or imposing a penalty has to be strictly construed.
• State of Punjab v. Gurmeet Singh [(2014) 9 SCC 632]: The court used this case to highlight that the Penal Statute enacting an offence or imposing a penalty has to be strictly construed.
• The People vs. REID II [246 Cal. App. 4Th, 822]: The court used this case to highlight that the statutory ambiguity should be invoked as a last resort of interpretation. Where the Legislature has manifested its intention, courts may not manufacture ambiguity in order to defeat that intent.
• Ladner vs. United States [358 US 169]: The court used this case to highlight the “Rule of Lenity” requires a court to resolve statutory ambiguity in a criminal statute in favour of the accused, or to strictly construe the statute against the State.
• United States vs. Kozminski [487 US 931]: The court used this case to highlight the “Rule of Lenity” requires a court to resolve statutory ambiguity in a criminal statute in favour of the accused, or to strictly construe the statute against the State.
• United States vs. Wiltberger [18 US 76]: The court used this case to highlight the “Rule of Lenity” requires a court to resolve statutory ambiguity in a criminal statute in favour of the accused, or to strictly construe the statute against the State.
• IRC vs. Rossminster Ltd. [(1980) 1 AllER 80]: The court used this case to highlight that a court should not be over zealous in searching for ambiguities or obscurities in words which are plain.

Final Orders

The Supreme Court set aside the High Court’s orders and restored the convictions of Satish and Libnus under Sections 8 and 10 of the POCSO Act, respectively.

Case of Satish: The Supreme Court restored the conviction of Satish under Section 8 of the POCSO Act. The court held that the act of pressing the breast of the child, attempting to remove her salwar, and pressing her mouth amounted to “sexual assault”. The accused was sentenced to imprisonment for a term of three years along with a fine of Rs. 25,000/-. In default of payment of fine, he was to undergo further imprisonment for a period of three months.

Case of Libnus: The Supreme Court restored the conviction of Libnus under Sections 8 and 10 of the POCSO Act. The court held that the act of holding the hands of the prosecutrix, moving her frock upward, lowering her pant, unzipping his pant, showing his penis to her, and asking her to lay down on a wooden cot amounted to “sexual assault”. The accused was sentenced to imprisonment for a term of five years along with a fine of Rs. 25,000/-. In default of payment of fine, he was to undergo further imprisonment for a period of three months.

Flowchart of Supreme Court’s Reasoning

Ratio Decidendi

Concurring Opinion

Justice S. Ravindra Bhat delivered a concurring opinion, agreeing with the majority opinion but emphasizing the need for the courts to be sensitive to the vulnerability of children and to adopt a purposive interpretation of the POCSO Act. He also highlighted the need for the courts to be aware of the socio-economic realities of the country and to ensure that the law is applied equally to all.

Implications

This judgment has significant implications for child protection laws in India. It clarifies that “sexual assault” under the POCSO Act is not limited to cases where there is direct skin-to-skin contact. This broad interpretation will ensure that more offenders are brought to justice and that children are better protected from sexual abuse.

The judgment also emphasizes the importance of “sexual intent” as a key element in determining whether an act constitutes sexual assault. This will help in distinguishing between accidental contact and intentional acts of sexual abuse.

The judgment is likely to have a far-reaching impact on future cases involving sexual assault against children. It will guide the lower courts in interpreting the provisions of the POCSO Act and will help in ensuring that justice is served in such cases.

The Supreme Court’s decision is a significant step forward in the fight against child sexual abuse in India. It sends a strong message that the law will not tolerate any act that violates the dignity and safety of children.