Supreme Court sets aside Bombay High Court's 'skin-to-skin contact' order

The apex court said that the law cannot be interpreted to let the offender sneak out of the meshes of the law

The Supreme Court on Thursday set aside the Bombay High Court judgement which held skin-to-skin contact was mandatory for invoking charges under POCSO Act, saying it would mean "narrow and absurd" interpretation of the law.

A bench of Justices U U Lalit, S Ravindra Bhat and Bela M Trivedi said the law cannot be interpreted to let the offender sneak out of the meshes of the law.

The top court said the act of touching any sexual part of a child with sexual intent cannot be taken away from the purview of Section 7 of the POCSO Act. “We have held that when the legislature has expressed clear intention, the courts cannot create ambiguity in the provision,” said Justice Trivedi while reading out the judgement on behalf of herself and Justice Lalit said.

Also Read — A-G K K Venugopal terms Bombay HC's 'skin-to-skin contact' judgment 'outrageous'

The apex court also said it is right that courts cannot be overzealous in creating ambiguity. It said the most important ingredient of constituting sexual assault is sexual intent and not skin-to-skin judgment with the child.

Justice Bhat passed his own separate but concurring judgement. He held the reasoning of the High Court "quietly insensitively trivialised and normalised behavior which undermined dignity of children".

The top court directed the separate accused to undergo rigorous imprisonment.

On September 30, the Supreme Court had reserved judgment on appeals filed by Attorney General K K Venugopal, the National Commission for Women and the Maharashtra government.

Senior advocates Sidharth Luthra and Siddharth Dave acted as amicus curiae in the matter.

The top court had on January 27 stayed the High Court's judgement after Venugopal mentioned the matter before it and said that the January 19 verdict was “unprecedented” and was likely to set "far-reaching" and “dangerous precedent”.

In his arguments, the A-G contended if tomorrow a person wears a pair of surgical gloves and feels the entire body of a woman, he won't be punished for sexual assault as per the High Court's judgment.

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