The Supreme Court’s ruling that “skin-to-skin” contact is not necessary for a crime to be considered under the Protection of Children from Sexual Offences (POCSO) Act restores the original intent of the law which was misinterpreted by a bench of the Bombay High Court in two controversial rulings earlier this year.
The High Court had acquitted two men, who had abused children saying that their actions could not be termed as sexual assault under the provisions of POCSO Act. The Attorney General of India and others, including the National Commission for Women, challenged the High Court rulings, stating that such rulings would have a wide impact on society. The apex court rightly quashed them, pointing out that physical contact made with sexual intent came under POCSO, and “skin-to-skin” contact was not the criterion.
The High Court had found the accused persons not guilty in two similar cases. In the first, the charge was that the accused groped a 12-year-old girl over her dress. In the second, the accused held the hands of a five-year-old child and opened the zip of his pants. The High Court ruled that they did not attract POCSO provisions as no skin-to-skin contact was involved and holding the hand of the child was a minor offence. It is strange that the High Court took a view that went against the spirit of the law made with the aim of protecting children from sexual abuse. The ruling would mean, as the Attorney General said, that “someone can wear a surgical glove and exploit a child and get away scot-free.”
The Supreme Court described the High Court’s interpretation as absurd and insensitive and said that it “trivialised and even legitimised an entire range of unacceptable behaviour which undermine a child’s dignity and autonomy.’’ A judgement by the Allahabad High Court, given last week, which said that an oral sex act inflicted on a minor boy did not amount to “aggravated sexual assault” is also equally wrong and absurd.
It is clear that both the High Courts interpreted the law wrongly, going against the legislative intent behind it. Such judgements set wrong precedents for the lower courts and send wrong messages to society. The apex court meant this when it said that “when the legislature has expressed a clear intention, the courts cannot create ambiguity in the provision’’. As it asserted, “the most important ingredient for constituting the offence of sexual assault is sexual intent’’. The function of a court is to interpret a law widely enough to protect its intent and not to narrow it down to frustrate its purpose.