'The Offence of Sexual Assault Under S.7 of POCSO Requires Skin-To-Skin Contact': Argues Senior Advocate Siddharth Luthra For The Accused

The Bench had earlier on Wednesday heard arguments of Attorney General K.K.Venugopal, Senior Advocate Geeta Luthra (appearing for National Commission for Women) and Senior Advocate Siddhartha Dave (Amicus Curiae) in the matter.

Continuing his submissions from Wednesday, Senior Advocate Siddhartha Dave, Amicus Curiae, argued that certain actions of the accused had escaped the attention of the honourable Bombay High Court which, in its impugned judgement, focussed only on the actions of touching of breasts. He submitted that actions of the accused- i.e catching the hand of the victim-child, removal of salwar fell within the second part of S.7 of the POCSO Act punishes 'any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.'

He further argued that skin-to-skin touching was not required as the word 'naked' was missing from S.7 of the POCSO. He made reliance on the MP High Court case where the argument of the defense counsel that the touch must be with respect to the naked vagina, naked penis or naked breasts were rejected by the court. He also relied on a Calcutta High Court case where touching the vagina over the undergarments was held to be sufficient to constitute an offence of sexual assault. Making reliance on Canadian Supreme Court cases, he submitted that the intention of the person committing the act is a factor in considering whether the touch is sexual or not. Senior Advocate Siddhartha Dave concluded his arguments by submitting that: "When two interpretations are possible, the interpretation which is favourable to children must be taken."

Taking up arguments for the accused on behalf of the Legal Aid Society Senior Advocate Siddharth Luthra, began his arguments by seeking to break down S.7 of the POCSO Act into two parts- one, touching vagina breasts, anus or penis and second, doing any other act with sexual intent which involves physical contact. He argued that in the second part of S.7 since the phrase 'contact' was preceded by 'physical', the import would be that skin-to-skin contact would be essential to constitute an offence of sexual assault. He further submitted that the crucial difference between S.354 of IPC (Outraging the modesty of a woman) and S.7 of POCSCO was the fact that under S.354 even the touching of cloth would be a part of force or criminal force.

"S.354 includes not only physical contact but also touch over clothes."-he submitted.

The Bar and Bench engaged in a lengthy discussion on the meaning and import of 'touch' under S.7 of the POCSO Act.

In response to Sr. Adv. Siddharth Luthra's submission that physical touch must require skin-to-skin touch, the Bench quipped:

"What does touch mean? Let's go by simple definition. You are not merely wanting to touch the clothing if there is a sexual intent. We must see touch in the meaning that Parliament intended. That's why we have to go by the general meaning of touch."

In response, Sr.Adv. Siddharth Luthra sought to create a distinction between the first and second part of S.7 of the Act. He submitted:

"I'm not disagreeing. My point is there are two parts to provision. In the first part, the touch maybe with or without skin. No problem there. In the second part, the word 'contact' is qualified by 'physical' so there is requirement for skin-to-skin contact."

In response Justice U.U.Lalit asked:

"So, do we understand your submission that the first part skin to skin need not be there? According to you, in the second part skin to skin contact is essential."

Further Justice Ravindra Bhat asked:

"In that case would it be necessary for you to rely on the second part of S.7?"

Sr. Adv. Siddhartha Luthra responded that the distinction becomes relevant for the case of Libnus where the accused is said to have touched the child's shoulder and showed his penis. He further submitted that wherever there is an ambiguity in law, the Rule of Lenity must apply and the ambiguity must be decided in favour of the accused. Relying on the principles of statutory construction, Senior Advocate argued that there is a difference between the import of the first and second parts of S.7 of the POCSO Act.

Going back to the distinction between 'touch' and 'physical contact' that was argued by Sr.Adv. Luthra, the Court asked why there was a difference, if any between the two terms. The Court asked:

"If the import of both is the same then why the legislature is using two different terms? Can we say that physical contact is anything less than touch?"

Sr.Adv Siddharth Luthra submitted that physical contact is required otherwise prosecution might criminalize broad day-to-day activities. He submitted: "My whole point is if we allow physical contact to be diluted, then we are creating a new offence. That is something I would commend the Court to not do."

Justice Lalit asked:

"Why according to you physical contact has to be read as skin to skin contact? Why can't it be through cloth or any kind of material? Why is it applicable to the first part and not the second part?"

Sr. Adv. Luthra: "Because contact is qualified by physical contact and touch is not."

In response, the Bench posed hypothetical examples to the Senior Advocate to understand the conclusions of the submissions made by him.

Bench: "If we accept your submission, there will be four parts that come under the first part and second part will cover everything. Holding the child over the cloth, the person will not be guilty?

Sr. Adv. Luthra: "If it is with sexual intent, then yes."

Bench: "So, if the touch/physical contact is pregnant with sexual intent, then everything falls into place. Tell us, if the backside of a child is groped, will he be guilty or not without skin-to-skin contact?

Sr.Adv. Luthra: "Yes, My Lord because that is how it is worded."

Bench: "One has to see things from the perspective of the recipient of the touch."

Sr.Adv. Luthra: "He maybe prosecuted under S.354 of IPC."

Bench: "What is the child is a boy? S.7 of the POCSO Act is a gender-neutral offence."

Sr. Adv. Luthra: "Please note S.354A of IPC."

Bench: "What is the perpetrator is a woman? So far as Section 7 is concerned, the perpetrator can be a man/woman."

Sr. Adv.Lutha: "There is S.355: Assault of Criminal Force with the intent to dishonour a person."

Bench: "That is a general provision. Why should we resort to that when there is a specific law."

The Bench observed that one must rely on different situations to see whether a given interpretation logically holds. It also observed that when an offence has been clearly laid down then whether there was need to "stretch one's reasoning" and rely on other provisions. The Bench further observed that one must look at things from the victim's perspective. If a pen is used to poke a person, there is no skin-t0-skin touch and according to arguments advanced there is no sexual assault. But there is invasion of privacy and violation of modesty of the child.

The Bench further observed that: "If we accept your submission, what kind of results will we get? According to us, the results will be disastrous!"

In response, Senior Advocate Luthra argued that the legislature consciously used the term 'physical act' in the second part of S.7 of the Act.

The Bench observed that the distinction maybe because the first part deals with making the child touch physical parts of the perpetrator's body and hence the emphasis on the body parts. The Bench observed that "If you make the child touch your own arms, cheek then it may not be sexual assault."

Post lunch, Senior Advocate Siddharth Luthra argued on the specific facts of the individual cases. He took the court through the deposition of the witness in the cases, the FIRs lodged and the impugned judgements. He argued that the credibility of the victims in the State of Maharashtra vs Satish was questionable, that there was discrepancy in the time of the FIR lodged in the Libnus Case.

The Bench observed that the cases were presently in the third court and this might not be a case of re-appreciation of evidence. Nevertheless, the Bench went through the witnesses' testimonies, the FIRs lodged, chargesheets filed and convicting section of the judgements in both cases.

Senior Advocate Siddharth Luthra concluded his arguments by submitting that the relevant ingredient for the offence of sexual assault under S.7 of the POCSO Act are not fulfilled as there is no physical contact.

Senior Advocate Geetha Luthra, representing National Commission for Women, briefly intervened to argue that since POSCO Act has its own definitions of assault, sexual assault and aggravated sexual assault therefore the definition of assault from Indian Penal Code cannot be borrowed. She further made reliance on the meaning of 'contact' given in P.Ramanathan Aiyar's The Law Lexicon to argue that: "Touch and physical contact are synonyms are no distinction can be made between the two."
She submitted that no distinction can be made between 1st and 2nd part of S.7 of the POCSO Act.

Further, she relied on Meghraj Loya Etc vs State of Maharashtra to state that, "Any narrow and pedantic, literal and lexical construction likely to leave loopholes for this dangerous criminal tribe to sneak out of the meshes of the law should be discouraged."

In response to the arguments advanced on the Rule of Lenity, Sr. Adv. Geeta Luthra submitted that the touchstone of Rule of Lenity is statutory ambiguity and that the rule applies only when the court can do no more than guess the intention of the legislature. She made her final submission that- "The interpretation has to be careful so that it does not take into its ambit innocent cases but it has to be strict enough to satisfy the intention of the legislation."

Having heard learned counsel for the parties, the Bench ordered that the parties were at liberty to file their written submissions within three days and Reserved Orders.

Case Title: Attorney General for India vs Satish and another, National Commission for Women v State of Maharashtra, State of Maharashtra vs Libnus.