SKIN TO SKIN CONTACT: END TO THE CONTROVERSY

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If a person, say, Mr. A, slaps Mr. B with gloves on his hand, will it not be considered as an assault? This might be a weird question to answer, but a very similar and eerie judgment was given by the Bombay High Court, which, however, has been overruled by the decision of the Supreme Court now, and it became one of the landmark judgments of the year 2021.

This article talks about the judgment that was given by the Bombay High Court, why it received criticism of this amount, and what did the Supreme Court held to make this wrong a right. This article will be divided into three parts for this purpose, the very first one will talk about the high court’s decision, the second part will deal with the decision of the Supreme Court and the last part will be of comparative analysis of these two judgments.

“BOMBAY HIGH COURT’S DECISION”

The controversy started with the case of Satish Ragade v. The State of Maharashtra[1], the judgment, in this case, was given by the Bombay High Court’s Nagpur Bench, comprising of Justice Pushpa Ganediwala.

The facts of this case go as follows:

A complaint was made at a police station by the mother of the victim (twelve years old girl), in the year 2020, stating that a man named Satish Ragade in the name of giving her daughter guava, took her to his house and groped her breast through her clothes, and after that also attempted to take off her Salwar. The FIR was lodged by the police officer for the offenses that are punishable under the Indian Penal Code, 1860 (hereinafter IPC) and The Protection of Child from Sexual Offences Act 2012, (hereinafter POCSO) in the special court of Nagpur the charge sheet was filed.

The said special court found the appellant guilty and sentenced him to three years imprisonment for the offenses that are punishable in section 8 of the POCSO Act and sections 354, 363, 342 of the IPC. The appellant filed an appeal in the High Court of Bombay against this order of the Special Court.

Now, the issue before the High Court of Bombay was to decide, “whether the accused is liable to be punished under both the POCSO Act (Section 8) and IPC (sections 354, 342, 363)?

It was held by the High Court that because the groping that has been done by the appellant, was through the minor’s clothes and there was no skin-to-skin contact, it does not fall under the definition of ‘sexual harassment in the POCSO Act under section 7, and hence, the appellant will not be punished as per POCSO Act but only as per the section 354 of IPC, that talks about the outraging of women’s modesty, and at the same time also reduced the sentence of the appellant.

This judgment was setting a very dangerous precedent, and at the same time, it gave a very narrow interpretation to the definition of sexual assault, under the POCSO Act, by stating that, for any offense to fall under the category of sexual assault in this act, there must exist a skin-to-skin contact with the victim, this interpretation has been the very reason why this judgment received such serious backlash from the activists of child rights civil society members. They stated that this decision given by the High Court is unacceptable and obnoxious at the same time. It was also said that this judgment is especially flawed because it deals with children, who on many occasions can’t protect their selves.

Every year approximately ten thousand cases are reported related to sexual abuse of children, India is a country that has a major problem of ‘child sexual abuse’, and in such conditions, this judgment automatically increases the risk of child exploitation.

Hence, the National Commission of Women and the Attorney General for India filed an appeal before the Supreme Court of India Challenging this order of the Bombay High Court.

“JUDGMENT OF SUPREME COURT OF INDIA”

In the case of Attorney General of India v. Satish and Anr.,[2] the Attorney General of India, State of Maharashtra, National Commission for Women, and the appellant filed four appeals before the Supreme Court of India, against the decision given by the Bombay High Court (in Satish Ragade v. the State of Maharashtra), the coram of this case consisted of Justice Bela M. Trivedi, Justice U.U. Lalit, Justice S. Ravindra Bhat.

The issue that was brought before the Supreme Court was related to the interpretation of the POCSO Act, 2012, Section 7.

Supreme Court of India overruled the judgment given by the Bombay High Court, and referred to the dictionary, meaning of the terms ‘physical’, ‘contact’ and ‘touch’, which means ‘of or relating to the body’, ‘the condition or state of touching, or the act of touching’, and ‘the sense that enables one to be aware of things and what it is like when you put your hands and fingers on them’, respectively.

Hence, the court held “that after taking into consideration the meaning of physical contact and touch, both have been used interchangeably by the legislature under section 7, hence, ‘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 POCSO Act, 2012.”

Justice Bhat, although completely agreeing with the judgment given by the other justices in this case, briefly separated his opinion and agreed with the judgment given by the Bombay High Court, he said that “the interpretation of section 7 of the POCSO Act by the high court would not merely limit the operation of the law but tend to subvert its intention.”

He further observed, “It is no part of any judge’s duty to strain the plain words of a statute, beyond recognition and to the point of its destruction, thereby denying the cry of the times that children desperately need the assurance of a law designed to protect their autonomy and dignity, as POCSO does.”

 As per his view, the flaw in the reasoning of the High Court was that it assumed that section 7 of the Protection of Children from Sexual Offences Act, 2012 does not cover the concept of indirect touch in it or it can also be said that it assumed that the indirect touch is no touch at all. While clarifying this reasoning he said that this section of the Act is meant to cover and covers both kinds of touch the direct one as well as the indirect one.”

The court also stated that “the reason behind the judgment of the High Court does legitimize, but insensitively trivializes an entire amount of unacceptable behaviour which then undermines the autonomy and dignity of the child, by the way of unwanted intrusions.”

This judgment of the Supreme Court was a unanimous one, and the court in clear words said that for an offense to fall under the category of sexual assault under sections 7 and 8 of the POCSO Act, the existence of sexual intent behind such action is necessary and not the skin-to-skin touch.

“RECENT DEVELOPMENT”

In a very recent case of Aparna Bhat v. State of Madhya Pradesh[3], Supreme Court of India quashed the Madhya Pradesh High Court’s condition for bail.

 In this case, the complainant’s neighbour (the accused in this case) went to her house, grabbed her hand, and attempted to sexually harass her, allegedly. The complainant lodged a complaint against the accused with the police for offenses that are punishable under sections 452, 354A, 323, and 506 of IPC. The investigation took place, after which filing of the charge sheet was done.

The accused on the other hand applied for anticipatory bail under section 438 of the Code of Criminal Procedure. 1973. High court while considering the application for the anticipatory bail stated that bail will be awarded on fulfilment of a condition that the accused shall with his wife go to the complainant’s house, with a Rakhi and sweets, and request her (complainant) to tie the thread on his hand and promise to protect her the best way he can.

A petition was filed by Advocate Aparna Bhat against this order of the Madhya Pradesh High Court, questioning the condition that the court has imposed on the accused, how the society will be impacted by it, and if it is acceptable or not.

The issues before the court in this case were:

  1. In the cases of sexual harassment can such compromise be made?
  2. What guidelines must be considered while the bails or anticipatory bails are granted by the court?

The Supreme Court of India while setting aside the condition that has been put forth by the Madhya Pradesh High Court for the grant of anticipatory bail (for the accused to request the complainant to tie Rakhi on his hand). The court while giving the judgment stressed the fact that such a liberal or soft approach must not be adopted by the courts, “which would be in the realm of a sanctuary of errors.”

Supreme Court also laid down a few guidelines that are to be followed whenever any case related to sexual crimes comes before the courts, those are as follows:

  1. The court has to keep in mind that while the case of sexual crime is pending before it, under no condition there shall be any contact between the victim and the accused as bail’s condition.
  2. Bail must be as per the provisions of CrPC and the order of the court shall not reflect notions of patriarchy against women
  3. To suggest that the accused and victim should get married must not be done by the court
  4. The court shall not give judgments on any biases or stereotypes.
  5. Court also made it mandatory to include a module as a part of every judge’s ‘fundamental training’, to make sure that while hearing cases related to sexual crimes, they eliminate misogynist mentality
  6. Supreme Court of India also directed the Bar Council of India to incorporate “gender sensitization” in the course of LL. B and also a compulsory topic in the syllabus of the All India Bar Examination.

Directing the victim to tie Rakhi on the hand of her harasser will be more traumatic to her than anything else, making the victim go through such trauma not once, but twice, will not help in achieving the justice, that the Constitution of India guarantees to provide.

Bringing the concept of gender sensitization in the course of law at an early stage will further help in avoiding such judgments which are based on biasness, understanding the need of different genders will help the future judges in making broad-minded judgments, as well.

This judgment of the Supreme Court threw light on the most important matter that is, gender sensitization. The main cause behind the discrimination among genders is the patriarchal mindset that remains instilled in the mind of the society, with such a mindset a case related to sexual abuse can never be judged justly.

Often it has been seen that while a case is pending before the court in India related to the sexual abuse, the stereotypical questions like, what kind of clothes were victim wearing, at what time she was out of her house, et cetera are raised, what these questions only results in is victim-blaming, which is another issue in this country, a female has been harassed sexually, and instead of supporting her we ask her why she was out so late, why was she wearing tight clothes, with whom was she out when the crime happened, all of this doesn’t help in reaching to a just decision but a judgment based on stereotypes, or biasness.

Hence, this judgment of the Supreme Court is a game-changer and must be followed in all circumstances.

“OPINION AND CONCLUSION”

About the rule of interpretation, the Supreme Court of India has held in the case of Maharashtra State Co-op. Bank Ltd. V. Assistant P.F. Commr. &Anr[4], that, “it is vital for the courts of the country to provide with a calculated interpretation to the provisions while keeping in view the Articles 39 and 15 of the Indian Constitution. However, courts cannot interpret the provisions in such a way that it creates confusion or defeats the purpose of the legislation.” 

Similarly in another case of Southern Electricity Supply Co. of Orissa Ltd v. Sri Seetaram Rice Mill[5], the Supreme Court of the country held that “the rule of interpretation must be effectively applied on the provisions of the present type. It should be kept in mind that such interpretation shall not be accepted which frustrates the law itself in the provisions.

When a case[6] came before the Supreme Court of India where it has to deal with the interpretations of some provisions of the Protection of Children from Sexual Offences Act, 2012, it held that “whenever a humane or social welfare legislation is interpreted, the interpreter must be guided by the content, statute’s context, and colour”.

As per my opinion of the interpretation that was given by the Bombay high court in the case of Satish Ragade if accepted, it will render various acts of sexual abuse out of the coverage of the Protection of Children from Sexual Offences Act, 2012. Say, Mr. A, with sexual intent, undresses a child, while wearing gloves on his hands, and touches the child’s naked body, as per the interpretation given by the high court this act will not be considered as sexual assault because, there has been no skin-to-skin contact, or no physical contact with the victim’s person, therefore, it will fall out of the ambit of the POCSO Act, 2012, hence letting the offender roam free or with lesser punishment than what he/she deserves.

If the High Court’s interpretation were to be allowed, not only the POCSO Act but IPC would also have been affected. Section 354 A of the code talks about sexual harassment and the punishment for the same, this section also uses the term physical contact, now following the High Court’s interpretation for the terms physical contact or touch, will automatically harm the intent with which this amendment was brought in the code.

The very concept of “sexual assault” of a child, doesn’t have anything to do with skin-to-skin contact between the assaulter and the victim. Presuming that a child can never be abused by a person when he/she is fully clothed, only means to remain oblivious of the obvious truth. This actually sums up to downplaying such a serious crime that has become a threat today.

Hence, the interpretation that must be given to the term physical contact/touch must be such that it does not defeat the intent of the legislator, but such that further such purpose of the Act, itself.


[1] Criminal Appeal No. 161 of 2020

[2] Criminal Appeal No. 1410/2021

[3] Criminal Appeal No. 329/2021

[4] Civil Appeal No. 6894/2009

[5] Civil Appeal No. 8859/2011

[6] Eera v. State, Criminal Appeal No.12171219 of 2017

Author: Vaishnavi Vats, Jamnalal Bajaj School of Legal Studies, Banasthali Vidyapith, Rajasthan

Editor: Kanishka VaishSenior Editor, LexLife India

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