Supreme Court quashes skin-to-skin contact order, cites sexual intent

The Supreme Court quashed Bombay High Court’s controversial skin-to-skin order, saying that the most important ingredient constituting sexual assault is sexual intent and not skin-to-skin contact with the child.

The Bombay High Court had ruled that there is no sexual assault if there is no direct skin-to-skin contact between an accused and victim.

A bench headed by Justice U U Lalit set aside the high court judgment and said the act of touching the sexual part of the body or any other act involving physical contact if done with sexual intent would amount to sexual assault within the meaning of section 7 of the POCSO Act.

Purpose of the law cannot be to allow the offender to sneak out of the meshes of the law, the apex court said.

“We have held that when the legislature has expressed clear intention, the courts cannot manufacture ambiguity in the provision. It is right that courts cannot be overzealous in searching ambiguity,” the bench, also comprising Justices S Ravindra Bhat and Bela M Trivedi, said.

Justice Bhat delivered a separate concurring judgment.

“The most important ingredient for constituting the offence of sexual assault is sexual intent and not skin-to-skin contact with the child. Construction of a rule should give effect to the rule rather than destroying it. Any narrow interpretation of the provision which would defeat its object cannot be accepted. The intention of the legislature cannot be given effect unless wider interpretation is given,” the bench said.

This is the first time that the Attorney General had filed an appeal on the criminal side, the apex court said.

Senior advocate Siddhath Luthra appeared for the convict in the case as an amicus curiae, while his sister, senior advocate Geeta Luthra, appeared for the National Commission of Women.

Attorney General K K Venugopal had earlier told the apex court that the controversial verdict would set a “dangerous and outrageous precedent” and needed to be reversed.

The controversial order was passed by Justice Pushpa Ganediwala of the Bombay High Court (Nagpur Bench).

The verdict had said that groping a minor’s breast without skin-to-skin contact cannot be termed as sexual assault as defined under the POCSO Act.