Protection of Children from Sexual Offences Act, 2012(POCSO) Act,[1] was formulated to establish a foolproof framework to protect the children from sexual offences and to provide the clear definition of different forms of sexual abuse, as the existing legal framework was not sufficient to deal with the offense of sexual assault against children.
“Growing multiple reports by the Law Commission of India, including the (1993),156th (1997), and 172nd2000 reports,”[2] That has highlighted the urgency to widen the definition given for rape and to include the other forms of sexual assault. Also, Data released by the National Crime Bureau raised concern regarding an alarming increase in cases of sexual offences against women and children. “The data collected by the National Crime Records Bureau shows that there has been increase in cases of sexual offences against children. This is corroborated by the “Study on child abuse: India 2007” conducted by the Ministry of Women and Child Department. Moreover, sexual offenses against children are not adequately addressed by the extant laws.” all have led to the “POCSO Act” coming into existence. [3]
But despite the progress made through the Protection of Children from Sexual Offences Act, 2012 POCSO Act, this type of ruling creates legal setbacks, such as one of the controversial rulings delivered by the Bombay High Court in the case of Satish vs the State of Maharashtra, which undermined the scope of the POCSO Act.
The case revolves around the controversial interpretation made by High Court of bombay in the case of Satish S/O Bandu Ragde vs. the State of Maharashtra
This case was decided on January 19, 2021, in which the interpretation of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).[4] The ruling given by the Bombay High Court was highly criticized for its narrowed interpretation that it would have a devastating effect on society. Bombay High Court’s decision, led by Justice Pushpa Ganediwala, given a narrow interpretation of “sexual assault” under Section 7 of the POCSO Act[5], requiring “skin-to-skin” contact to constitute the offense.
However, the Supreme Court has played a crucial role in rectifying this setback. S.C. intervened in the matter through the case of the Attorney General of India vs. Satish & Anrs[6], struck down ruling that is passed in Satish vs. the State of Maharashtra. [7]
SC reiterated that there should be a broader interpretation of the POCSO Act’s purpose and that children should be protected from all forms of sexual abuse, including direct or indirect physical contact.
This review will highlight the implications caused by judgment, as well as legal, social, and judicial implications. This type of ruling has the effect of a grave issue of how judicial observations can significantly impact society at large and have the effect of shaping society’s attitude towards crime against women and children.
This review will also shed light on building a system of accountability and sensitivity of judges while making such kind of observations and interpretations, especially in cases of crime against women, that involve cases of sexual offences. Also, this review will underscore the need to ensure the responsibility, discipline, and sensitivity of judges while dealing with cases related to crimes against women.
Case Background
Facts of the Case: In this case, the age of the prosecutrix is a 12-year. The fact of the case is that on December 14, 2016, the appellant took the prosecutrix to his house as informed by the neighbour to her mother. While visiting the accused place, he saw the accused coming down the stairs. When the mother of the prosecutrix searched for her daughter, she found her crying on the first floor of the accused room, where she was locked, after asking her mother, she explained the whole incident of how the “appellant had pressed her breast and tried to remove her salwar”. Thereafter, they filed a report against the accused.
After hearing the matter, the trial court convicted the accused of violating “Sections 354, 363, and 342 of the Indian Penal Code and Section 8 of the Protection of Children from Sexual Offences Act, 2012 and sentenced him to rigorous imprisonment for 3 years with a fine of Rs. 500.”[8]
Thereafter, the accused challenged the decision to go to trial in the Bombay High Court, where Justice Pushpa Ganediwala delivered her controversial judgment.
This ruling passed by Bombay has raised concerns over how previous judgments under the POCSO Act were interpreted, particularly regarding the necessity of direct physical contact for determining “sexual assault.
Judgment Overview [Satish vs The State of Maharashtra]
Para:18: “The act of pressing of breast of the child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of ‘sexual assault. “So, the act of pressing breast can be a criminal force to a woman girl with the intention to outrage her modesty but not assault under POCSO Act.”[9]
Para.26: “As such, there is no direct physical contact i.e. skin to skin with sexual intent without penetration.”[10]
“According to the interpretation placed by the High Court as mentioned in above para 18 and 26 of judgment that to constitute any act as an offense, the touching of any of the parts mentioned by the statute (penis, vagina, anus, or breast) must be of the organ, and there should be a “skin to skin” contact.”[11]
Justice Ganediwala, while acquitting the accused, has given reasoning that “skin to skin” contact is necessary to constitute an offense of assault under section 7 of the POCSO Act.
The observation was that there was no “physical contact” involved as there was no sexual intent and penetration, as mentioned under section 7 of the Act. Since the appellant has touched the accused over her clothes and had not touched her skin directly, it would not fall under the criteria set for section 7 of the POCSO Act. so, the accused was convicted under section 354 of IPC, which deals with outraging the modesty of women, and instead of section 8 of the POCSO Act.
This ruling had sparked criticism from different corners of society for its narrowed and literal interpretation of the POCSO Act, particularly because it seemed to undermine the law’s protective intent.The interpretation made by Justice Ganediwala, in this case, has caused considerable concern, as this type of ruling can set a dangerous precedent and may convey the wrong message to society at large against sexual offense cases.
Legal Analysis
The key issue involved in the case was the interpretation that is given in case of Satish vs The State of Maharashtra about “physical contact” that is provide under section 7 of the POCSO Act. This section defines sexual assault as any act that involves physical contact without penetration, performed with sexual intent
Section 7 of the Protection of Children from Sexual Offences Act, 2012 POCSO Act: Sexual assault “is defined as any act of touching a child’s sexual organs, or any other act involving physical contact, done with sexual intent but without penetration.”[12]
The interpretation made by justice that to constitute an offense of assault, skin-to-skin contact is necessary based on an overly literal interpretation. This judgment has failed to consider the broader object of the POCSO Act, that is designed for protection of children from every form of sexual abuse, whether through direct or indirect contact. This judgment failed to consider a broader scope of the law to protect children and has focused more on the technicality of contact rather than the abusive intent of the act, which could potentially allow perpetrators to evade conviction by wearing gloves or committing the act through clothes, even with clear sexual intent, and hence dilute the purpose of the act.
Supreme Court’s Intervention and Interpretation
In the ATTORNEY GENERAL VS UNION OF INDIA [13]Supreme Court has reversed the Bombay High Court’s judgment in Attorney General of India vs. Satish and rejected the interpretation by Justice Ganediwala that to establish an offence of sexual assault, “skin to skin” contact is required under the POCSO Act and restored the broader interpretation of the law.
The SC made the observation that purpose of the POCSO Act is protection of children from all forms of sexual abuse, including acts done with sexual intent, irrespective of whether the contact was skin-to-skin or through clothes. The most important aspect of sexual assault is the “sexual intent” behind the act, not the very nature of the physical contact.
The Supreme Court has clarified that limiting the scope of sexual assault to only skin-to-skin contact would defeat the purpose of the POCSO Act, which is designed for protection of children from all forms of sexual abuse.
SC held that under section 7 both direct and indirect touch are covered. To explain this, the court has gone into the meaning of the term touch: The term “touch” touching is engaging in one of the most basic human sensory perceptions”. Also, the Supreme Court has used the help of dictionary meaning to better understand the meaning of words involved in interpreting section 7 of the POCSO act. “The word physical, “as defined in the Advanced Law Lexicon, 3rd Edition, means “of or relating to the body,” and the word “contact” means “the state or condition of touching; touch; the act of touching.” [14]
Thus, about the dictionary meaning of the words “touch” and “physical contact.The use of the expression “touch” appears to be common to the first and second parts of the first limb”. “Touch,” says the Cambridge Dictionary, is “to put your hand or another part of your body lightly onto and off something or someone.” Collins Dictionary, likewise, states that “Your sense of touch is your ability to tell what something is like when you feel it with your hands”[15]The receptors on the surface of the human body are acutely sensitive to the subtitles of a whole range of tactile experiences[16]. Hence, the interpretation by the High Court with respect to touch that it is important that touch involves the contact with a child’s sexual body parts, through clothes touch is not covered under act is based on a lame argument. Lastly, it was held that the words ‘touch’ and ‘physical contact’ under Section 7 have been used by the legislature interchangeably.
Also, the Supreme Court has criticized the interpretation method used by the High Court, holding that the principle of ejesdum generis applied by the High Court in interpreting section 7 is thoroughly misconceived. As this method can be used to aid the construction of the statute and cannot be applied to defeat the very purpose of the law. instead, the court should have used mischief to rule the background, history, and object that led to this POCSO act.
Supreme Court has held that where the legislature’s intention cannot be given effect, the court should adapt wide construction. In this case, the High Court has applied a very restrictive interpretation that is limited to the words “touch” or “physical contact” and “skin-to-skin” contact. This interpretation is absurd and plain for the purpose of section 7 of the act .it has led to the very pedantic interpretation of said provision of skin-to-skin contact for constituting an offense that the legislature could not have intended.
The court has laid down some standards of interpretation, such as that while interpreting a statute, the judge should keep in mind that construction should be adopted in a way that promotes the intent of the legislation and prevents its possible abuse. In this case, the high court should have observed that the purpose of the act was to prevent all forms of sexual abuse against children.
The court has also shed light on the object of the POCSO Act and why it was enacted. Holding that, SC stated that such narrow interpretation by judges could lead to detrimental situations in society and undermine the very object of the act “since touching the sexual or nonsexual parts of the body of a child either with gloves, sheets, condoms, or with cloth, though done with sexual intent would amount to an offense of sexual assault under Section 7. of the POCSO Act”.[17]
The reasoning adopted by the high court has downplayed and even justified the wide range of unacceptable behaviours that undermine children’s dignity and autonomy by forcing unwanted intrusion on them. Thus, the Supreme Court finally held that The High Court had erred in basing its conviction on such an interpretation.
Impact on Society and Legal Precedents
The judgment delivered by the High Court of Bombay have a detrimental impact on the progress made in strengthening these kinds of laws. this kind of ruling undermines the awareness program and efforts that have been taken or are going on to make people aware of sexual assault and promote gender sensitization. The narrow interpretation that the court has adopted in this case has diluted the protections provided by the act and tried to minimize the seriousness of sexual crimes against children.
The Bombay High Court’s ruling has the effect of a potentially harmful message to society, suggesting that certain forms of sexual abuse might be excused if they do not involve direct skin contact and reignited the debate over gender bias and judicial sensitivity in cases involving sexual offenses against women and children.
But the Supreme Court has intervened and struck down the ruling that was very much required to restore the public faith in the justice system and ensure that laws like the POCSO Act remain effective in curbing child abuse.
Judicial Accountability and Sensitivity
The ruling given by the Bombay High Court has raised concern that the Justice system requires accountability of judges while taking such a lenient approach in the case of crimes against women and children. and there should be judicial accountability, especially in cases involving vulnerable victims like crimes against women and children.
It underscores the need for judges to interpret laws in a way that upholds the spirit of protective legislation rather than undermining it through overly narrow readings.
As holding such a prestigious post, whatever observation is made by the judge in a particular case somehow affects the thought process of society and plays a very important role in setting a notion. However, this ruling has shown the hollowness of the judicial system and that judges still take a gender-based approach. I think that to discourage this approach, a gender-sensitive program should be required. This program should include a component on gender sensitivity and the impact of sexual abuse on victims.
Conclusion
The judgment passed by the Supreme Court has played a crucial role in rectifying the ruling passed by the Bombay High Court in the case of Satish vs State of Maharashtra, saving the faith of the public’s faith in the judicial system and ensuring that overly literal interpretations of the law do not dilute its protections. The Supreme Court emphasized the importance of focusing on the intent behind acts of sexual abuse rather than the technicalities of physical contact.
The ruling has set an important precedent for future cases involving sexual offenses against children, ensuring that the POCSO Act remains a strong legal tool in the fight against offenses against children and child sexual abuse. The judiciary plays a very important role in setting the legal standard for women and protecting women and children against sexual offenses. Being the institution of justice, the role of judges is very important in society as they act as symbols of justice.
The interpretation made by judges while deciding the case holds a significant role in shaping the thought of society and protecting vulnerable groups like women and children. But this judgment has sparked a kind of debate on a national level that there is a need for judges to be more conscious while interpreting the statutes, especially against women and children, so that the intent of laws to protect women and children from sexual offense be upheld. It also raised concerns that the judicial system still has a gender-biased approach. gender sensitization program is very much required in the judicial system. Judges should not take any lenient approach and should not pass irrelevant observations and interpretations that harm society.
Ramu v. State of M.P., Criminal Appeal No. 555 of 2009[18], “He was kind enough to leave the rape victim alive” This type of remark has been made by Madhya Pradesh high court while reducing the sentence of a rape convict. Similarly, the Madhya Pradesh High Court has passed an order in the case of Aparna Bhat vs the state of Madhya Pradesh[19], where the M.P High Court imposed an absurd condition for bail it directed the accused to get Rakhi tied by the victim as a condition for bail. However, the Supreme Court highly criticized the order, stated that it is unacceptable and directed that stereotype opinion should be avoided during any judicial proceedings or a judicial order, and ordered that every high court should formulate a module on judicial sensitivity to sexual offenses to be tested in judicial services examination and gender sensitization programs should be held in every high court so that the greatest gender sensitivity to be displayed in judicial approach.
There is also a case, Prabhat Purkait @ Provat vs State of West Bengal, [20]where the Supreme Court by Suo moto action overturned the judgment passed by Calcutta High Court where the HC has advised the adolescent girls to “control sexual urges” while acquitting the accused previously guilty of kidnapping under POCSO Act. However, many times, SC intervention saved the judiciary integrity and people’s faith in the judiciary, but this needs to be stopped, and this cannot be possible unless some strict mechanism is there to discourage this kind of stereotype and lenient approach in case of sexual offenses against women.
A framework is required to make the judges accountable for their irrelevant observations or absurd rulings in the case of the vulnerable victims involved. Like for example, in the case of Otherwise, if this type of ruling observation is allowed to be continued, then this will set a dangerous precedent for other junior judges and give a wrong message to society. Ultimately, people’s faith in the judicial system will be lost.
[1] Protection of Children from Sexual Offences Act, No. 32 of 2012, INDIA CODE (2012).
[2]146th LAW COMMISSION OF INDIA REPORT, Sales Of Women And Children,26-02-1993,
156th LAW COMMISSION OF INDIA REPORT, Review On Rape Laws, August,1993,172nd
LAW COMMISSION OF INDIA REPORT, Law Commission Recommends Stringent Laws to Prevent Sexual Abuse Against Youngsters,4 January 2024
[3] ATTORNEY GENERAL FOR INDIA vs SATISH AND ANOTHER, [2021] 10 S.C.R. 955.
[4]Protection of Children from Sexual Offences Act, No. 32 of 2012, INDIA CODE (2012).
[5] Protection of Children from Sexual Offences Act, No. 32 of 2012, INDIA CODE (2012), section.7
[6] ATTORNEY GENERAL FOR INDIA vs SATISH AND ANOTHER, [2021] 10 S.C.R. 955
[7] SATISH VS STATE OF MAHARASHTRA, Criminal Appeal No .161 of 2020, Bombay High Court
[8] The Extra Joint Additional Sessions Judge, Nagpur (from now on referred to as the Special Court) vide the Judgment and Order dated the February, 2020 passed in the Special Child Protection Case No. 28/2017 convicted and sentenced the accused-Satish for the offences under Sections 342, 354 and 363 of the Indian Penal Code (for short ‘IPC’) and Section 8 of the Protection of Children from Sexual Offences Act, 2012 (For short POCSO Act).
[9] SATISH VS STATE OF MAHARASHTRA, Criminal Appeal No .161 Of 2020,
[10] ibid,
[11] ibid
[12] Protection of Children from Sexual Offences Act, No. 32 of 2012, INDIA CODE (2012). section. 7
[13] ATTORNEY GENERAL FOR INDIA vs SATISH AND ANOTHER[2021] 10 S.C.R. 955.
[14] https://dictionary.cambridge.org/dictionary/english/touch accessed at 16:55
hrs on 24.10.2024
[15] https://www.collinsdictionary.com/dictionary/english/touch accessed at 16:57 hours on 24.10.2024.
[16] ibid
[17] ATTORNEY GENERAL FOR INDIA vs SATISH AND ANOTHER[2021] 10 S.C.R. 955.
[18] RAMU V. STATE OF M.P, Criminal Appeal No. 555 of 2009
[19] APARNA BHAT VS THE STATE OF MADHYA PRADESH,2021 SCC online SC 230.
[20] PRABHAT PURKAIT@PROVAT VS STATE OF WEST BENGAL, Criminal Appeal no. 1451 Of 2024, Suo Moto Writ Petition (c) No.3 Of 2023
Author: Shama Parveen and Satyam Sresth are LLM Students at The West Bengal National University Of Juridical Sciences
