INTRODUCTION 

The skin-to-skin controversy has caused a lot of discussions about how India’s child protection laws are understood and used. The POCSO Act was created to be a complete law protecting all children under 18 from various sexual crimes, both those involving penetration and those that don’t. However, a bigger problem arose in the Bombay High Court ruling that for an Act to be considered a sexual assault under Section 7 of this law, there had to be a direct skin-to-skin contact. This narrow way of understanding the law caused huge controversy among lawyers, child rights activists, and the public. People feared it would cancel outthe  whole point of the act and allow criminals to escape punishment based on small details. The overturning by the Supreme Court not only explained the true intention behind the legislation but also stressed how important it is to handle these sensitive cases with children’s well-being always in mind. 

POCSO ACT & RELEVANT PROVISIONS 

The POCSO Act, enacted in 2012, is a gender-neutral legislation that recognizes a child as someone under the age of 18. The Penal Laws do not recognize that sexual assault can be committed on boys as well. The Act of 2012 has broadened the spectrum definition of what constitutes a sexual offence against a child. It further expands the definition of sexual assault to cover both non-penetrative and aggravated penetrative sexual assault. It is also inclusive of penalties for those in positions of trust, such as public workers, educational personnel, and police officers. The legislation also established measures to make the criminal justice system more child-friendly and to prevent re-traumatization. This includes everything from how the statement of a child should be recorded to the medical examination, and to the designation of special child-friendly courts. 

This enactment has evolved with various landmark case laws, such as Jarnail Singh v. State of Haryana (2013), wherein the courts held that the procedure to determine the age of the child can be as per the Juvenile Justice Rules 2007. In another case of Alakh Alok Shrivastava v. Union of India (2018), the Supreme Court laid down the guidelines to be followed by the trial court while hearing a matter under the POCSO Act so that the trial is completed within a period of one year from the date of taking cognizance of the offence. 

Section 7 of the Act lists the criteria for sexual assault, the act must involve 

1. The act must be done with sexual intent. 
2. It also involves a physical contract without penetration 

Section 8 provides for punishment. It states that ‘whoever commits sexual assault shall be punished with imprisonment of either description for a term which shall not be less than three years, but which may extend to five years of and shall also be liable for a fine’ 

ATTORNEY GENERAL OF INDIA V. SATISH AND ANOTHER (2021) 

Facts:  

A 12-year-old girl was residing in Nagpur. The accused, Satish Ragade, lured the miner into his house on the pretext of offering her a guava. Once inside, instead of fulfilling this promise, he pressed her breast and attempted to remove her Salwar. As the victim tried to escape and started screaming, the accused dragged her to the first floor and locked them in a room. The girl’s mother, unable to find her daughter, begins searching for her. A neighbor, hearing the screams, directed the mother to the accused’s house. The mother eventually found her daughter there. The matter was reported to the police, and a case was lodged at the police station in Nagpur. The trial court convicted Satish Ragade under both the Protection of Children from Sexual Offences Act and relevant sections of the Indian Penal Code for sexual assault of a minor. On appeal, the Nagpur bench of the Bombay High Court, presided over by Justice Pushpa V. Ganeiwala, acquitted the accused under Section 8 of the Protection of Children from Sexual Offences Act but convicted him under Section 354 of the Indian Penal Code, which deals with offences outraging a woman’s modesty. The Supreme Court later set aside the Bombay High Court judgment, clarifying that ‘skin to skin’ contact is not necessary for an act to constitute sexual assault under the POCSO Act 

Legal Issues: 

1. Whether pressing the breast of a minor girl over her clothes constitutes ‘sexual assault’ as defined under section 7 of the POCSO Act, or if ‘skin-to-skin’ contact is necessary for the act to fall within this section? 
2. Whether the absence of direct ‘skin-to-skin’ contact precluded conviction under section 8 of the POCSO Act, which punishes sexual assault of a child? 
3. Whether the accused’s act of attempting to remove the minor’s salvar in addition to touching her private parts, would fall under the ambit of sexual assault or sexual harassment under the POCSO Act? 
4. Whether the victim’s testimony and her mother’s account in establishing the offense under the POCSO Act is credible and sufficient? 

Supreme Court’s interpretation: 

The Bombay High Court’s Nagpur bench had ruled that in the case of Satish Raghav, state of Maharashtra, pressing a child’s breast without making skin-to-skin contact does not constitute molestation under the Protection of Children from Sexual Offences Act. The comment was given by a single bench. Dissatisfied with such a judgment, the Attorney General of India, the National Commission of Women’s Rights, and the state of Maharashtra filed an appeal against the controversial decision. 

The Supreme Court observed that Section 7 covers both direct and indirect touch, thereby highlighting that the logic in the High Court’s opinion quite insensitively trivializes, indeed legitimizes a whole spectrum of undesirable behavior which undermines a child’s dignity and autonomy, through unwelcome intrusions. The Apex court observed that the matter at hand would be an appropriate situation for using the “mischief rule” of statutory interpretation. It emphasizes that the court must constantly interpret the law in order to prevent harm and promote the remedy. In this view, the top courts’ judgment observed that the High Court’s interpretation not only restricts the implementation of the legislation but also seeks to prevent its objective. 

The courts raised the question that if Section 354 of the Indian Penal Code can apply, why not Sections 7 and 8 of the POCSO Act can be applied. the penalty should be equivalent to the seriousness of the offense. Physical contact does not necessarily mean skin-to-skin touch. The inaccurate or flawed interpretation may put many people in a baffled situation. In one of the earlier cases, that is the case of Jagar Singh versus State of Himachal Pradesh, the situation is almost similar, and, in that case, it was well settled that the judgment should be given in favor of the minor. 

WHY THIS CLARITY MATTERS 

The clarity on whether skin-to-skin contact is necessary to constitute sexual assault, which is crucial because, 

1. “This interpretation impacts conviction and sentencing of the accused. The flawed interpretation by the High Court may lead to the accused’s acquittal in a society that may commit more aggravated crimes and still would not be punished due to a possible loophole. 
2. This narrow interpretation risks setting a dangerous precedent, potentially allowing the offenders to escape stringent penalties by claiming no direct skin-to-skin contact, thereby undermining the protective intent of the act. 
3. Had the Supreme Court not restricted the definition to skin contact, it would have defeated the statute’s purpose of protecting children from all forms of sexual assault, including touching over clothes with sexual intent. 
4. This judgment set an important precedent that affects how the courts interpret sexual assault on minors, emphasizing that any physical contact with sexual intent, irrespective of whether clothes are involved, is punishable. 
5. Had the Supreme Court not intervened, the human rights activists, Women’s Commission, and legal experts feared that the high court’s judgment would weaken legal safeguards for children.” 

CONCLUSION 

“The ‘skin-to-skin’ controversy within the meaning of the POCSO Act presented an important opportunity in the interpretation and implementation Protection of Children from Sexual Offences Act, a legislation made with the intent to protect children. However, the Bombay High Court’s restrictive construction of the meaning had the potential to. Restrict the purpose of the act. This reading threatened to open a loophole so that criminals could get away with tough punishment merely because the act was perpetrated through clothing, thus weakening the deterrent of the law and its purpose of protecting children from every manner of sexual abuse. 

The intervention of the Court has led to the establishment of a landmark precedent which states that skin-to-skin contact is not essential for the commission of the crime under the Protection of Children from Sexual Offences Act. By making it clear that touching a child’s body with sexual intent—whether over or under clothes—constitutes sexual assault, the Court made it certain that the law remains strong and effective in safeguarding children. This ruling not only shut the door on a possible legal loophole but also reaffirmed the principle that the dignity and bodily autonomy of children should be protected without exception.”  

AUTHOR: KAVYA GUPTA

REFERENCES 

1. chrome-extension://kdpelmjpfafjppnhbloffcjpeomlnpah/https://www.manupatracademy.com/assets/pdf/legalpost/Landmark-Judgments-Under-Pocso-Act.pdf 
2. chrome-extension://kdpelmjpfafjppnhbloffcjpeomlnpah/https://3fdef50c-add3-4615-a675-a91741bcb5c0.usrfiles.com/ugd/3fdef5_da8c802e0b15422baba68f45bdd8f20f.pdf