Judges Should Not Strain Plain Words Of Statute To Destroy Legislative Intent : Justice Ravindra Bhat On 'Skin To Skin' Judgment In POCSO Case

The Supreme Court on Thursday set aside the controversial judgment of the Bombay HC which held that 'skin-to-skin' contact is necessary for the offence of sexual assault under Protection of Children from Sexual Offences(POCSO) Act.

A bench comprising Justice Uday Umesh Lalit, Justice S Ravindra Bhat and Justice Bela M Trivedi pronounced the judgment in the appeals filed by the Attorney General of India, National Commission for Women and the State of Maharashtra against the judgment of the High Court.

Justice Ravindra Bhat delivered a separate, concurring opinion in the case where he points at the need to interpret the statute in the context of the circumstances that resulted in its birth. The judgement relies on upon Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. & Ors. which had emphasized the need to contextualize the provisions of any law which requires interpretation, even while focussing on its text.

The judgement notes that the issue at hand would be an apt case for the application of "mischief rule" of interpretation of statutes. It stresses that courts always have to interpret the law so as to suppress the mischief and advance the remedy. In this light, the judgement notes that the interpretation adopted by the High Court not only limits the operation of the law, but tends to subvert the intention too. "It has the effect of 'inventions and evasions' meant to continue the mischief which Parliament wished to avoid," it notes. 

Briefly tracing the history of the law which existed before the POCSO Act in order to gather the mischief which Parliament wished to eliminate, the judgement notes: 

"One cannot be unmindful of the circumstances in which these provisions were enacted by a colonial power, at a time, when women's agency itself was unacknowledged, or had limited recognition. Further, women in India were traditionally - during the time of enactment of IPC, in the mid nineteenth century -subordinated to the care of their fathers, or their husbands, or other male relatives. They had no share in immovable property; notions of gender equality were unheard of, or not permitted. Women had no right to vote. Quite naturally, the dignity of women or indeed their autonomy, was not provided for." (Para 9)

The judgement notes that it was the advent of the Constitution and provisions like Art.14, Art.15 (1) and Art.15 (3) that enabled the state to enact special provisions for the benefit of children and women. Given this historical backdrop, the judgement notes that laws like POCSO were enacted to overcome the "limitations in law dealing with acts that undermined the dignity and autonomy of women and children" and only by being mindful of mischief rule, the background, and history leading up to the enactment of the legislation that S.7 of the POCSO Act be interpreted.

Upon perusing the dictionary meanings of the terms 'touch' and 'physical contact', the judgment notes that:

" 'Contact' on the other hand, which is used in the second limb, has a wider connotation; it encompasses - but is not always limited to – 'touch'. While it is not immediately apparent why the term 'physical contact' has been used in the second limb, its use in conjunction with "any other act" (controlled by the overarching expression "with sexual intent"), indicates that 'physical contact' means something which is of wider import than touching. Viewed so, physical contact without penetration, may not necessarily involve touch. (Para 23)

It further explains that the Parliamentary intent and emphasis is that the offending behavior (whether the touch or other act involving physical contact), should be motivated with sexual intent. (Para 24)

Explaining what the term 'sexual intent' would entail, the judgement notes:

"The circumstances in which touch or physical contact occurs would be determinative of whether it is motivated by 'sexual intent'. There could be a good explanation for such physical contact which include the nature of the relationship between the child and the offender, the length of the contact, its purposefulness; also, if there was a legitimate non-sexual purpose for the contact. Also relevant is where it takes place and the conduct of the offender before and after such contact. In this regard, it would be useful to always keep in mind that "sexual intent" is not defined, but fact-dependent." (Para 25)

The judgement makes it abundantly clear that S.7 covers both direct and indirect touch and notes that "the reasoning in the High Court's judgment quite insensitively trivializes - indeed legitimizes -an entire range of unacceptable behaviour which undermines a child's dignity and autonomy, through unwanted intrusions. "

Justice Bhat concludes his separate, concurring opinion by quoting Justice Benjamin Cardozo from 'The Nature of Judicial Process'- the great tides and current which engulf the rest of men do not turn aside in their course and pass the judges by- and holds:

"It is, therefore, 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."

Also Read : Sec 7 POCSO - Main Ingredient Of Offence Of 'Sexual Assault' Is 'Sexual Intent' And Not 'Skin To Skin" Contact : Supreme Court