‘Undermines child’s dignity’, SC cites fallacy in Bombay HC’s ruling on skin-to-skin contact


The Supreme Court said on Thursday that the Bombay High Court’s judgement making skin-to-skin contact necessary for offence of sexual assault against a child undermines the latter’s dignity and autonomy through unwanted intrusions.

Justice S. Ravindra Bhat said in a separate and concurring judgment: “The reasoning in the high court’s judgment quite insensitively trivialises — indeed legitimises — an entire range of unacceptable behaviour, which undermines a child’s dignity and autonomy through unwanted intrusions.”

On the high court’s ruling, Justice Bhat said that such an interpretation not merely limits the operation of the law, but also tends to subvert its intention.

Bhat, citing an example, said the use of a spoon to consume food — without touching it with the hand — in no way diminishes the sense of touch that is experienced by the lips and the mouth.

He also junked the high court’s reasoning, which assumed that indirect touch was not covered by Section 7 of POCSO Act.

“That provision covers and is meant to cover both direct and indirect touch. In plain English, to touch is to engage in one of the most basic of human sensory perceptions. The receptors on the surface of the human body are acutely sensitive to the subtleties of a whole range of tactile experiences,” he said.

Bhat also quoted Benjamin Cardozo that “the great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by”.

“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,” Bhat said.

He also emphasised that judges should not interpret the law to destroy its meaning.