Thread by @barandbench

#SupremeCourt to continue hearing plea by Attorney General KK Venugopal against the Bombay High Court decision stating that 'skin to skin' contact was necessary for offence of 'sexual assault' under POCSO Act.

#POCSOAct

Senior Advocate Sidharth Luthra: Out of the four Petitions, before the Court, I appear for the Legal Services Authority. I have also brought on record the trial court records.

#POCSOAct #SupremeCourt

Attorney General KK Venugopal: According to me, the Court has misinterpreted Section 7 of the #POCSOAct.

Question arises that if the child is wearing a blouse, and you press the breast, will it prevent an offence under Section 8?

#POCSOAct #SupremeCourt

AG: This judgement will be treated as precedent for subordinate courts and the result will be devastating.. It will lead to an extra ordinary situation.

(AG Reads impugned judgement)

#POCSOAct #SupremeCourt

AG: The Judge says this as a comprehensive provision relating to touching the child, and believes that this is a stringent punishment. The parliament did not think so.

#POCSOAct #SupremeCourt

AG: What stricter proof is necessary? The facts state that she was invited into his house, closed the door, pressed her breast and attempted to pull her salwar. She screamed and was found by her mother.

#POCSOAct #SupremeCourt

AG: (In relation to S. 354 IPC.) This is a special law to protect children who are far more vulnerable.

#POCSOAct #SupremeCourt

AG conlcudes his arguments with a chart reflecting POCSO cases pending investigation.

#POCSOAct #SupremeCourt

Senior Advocate Geeta Luthra begins submissions.

I am relying on the objects and reasons of the act as well as 6-7 judgements of the US Supreme Court where it was geld that "skin to skin" cannot be given artifical meaning.

#POCSOAct #SupremeCourt

Sr. Adv. Geeta Luthra reads out a report of the Parliamentary Committee.

#POCSOAct #SupremeCourt

Sr. Adv. Geeta Luthra: What we would be at pains to show is, “or any other act” makes it a wide encompassing section.

#POCSOAct #SupremeCourt

Sr. Adv. Geeta Luthra: This section was deleted. The parliamentary intent is completey clear. We will try to show that the meaning in law lexicon touch and..

#SupremeCourt: Now let us see those English decisions.

Sr. Adv. Geeta Luthra: These are actually Court of appeal judgements. The judgement states the statutory provision.

Luthra reads out the sections.

#SupremeCourt #POCSOAct

Sr. Adv. Geeta Luthra: The fact was the touching from the bottom of the tracksuit outside the clothing.

#SupremeCourt #POCSOAct

Sr. Adv. Geeta Luthra: Two arguments were advanced. The first was based on the interpretation of the statute.
He submitted that touching of tracksuit bottoms.. Judge said the touching of clothing constitutes section 3 offence.

#SupremeCourt #POCSOAct

Sr. Adv. Geeta Luthra: Next decision is when the person touched the bottom of the skirt..

Court: This is like our 354.. This may not be the right case to support. This case has turned on the facts.

#SupremeCourt #POCSOAct

Sr. Adv. Geeta Luthra cites another case, State of Iowa: Clearly Defendant use of his hand can be used as substitute of sex organ.

#SupremeCourt: We are not going into the general.. we are just seeing what is skin to skin contact. Just concentrate on the particular paragraph.

#SupremeCourt reads relevant portion: A lack of skin to skin contact alone does not put defendants conduct outside sex act.

Anything else, Ms. Luthra?

Sr. Adv. Geeta Luthra cites another case: It is the same statutory provision.

#SupremeCourt reads, "we reject Pearson’s argument."

Sr. Adv. Geeta Luthra: The judgement prescribes when it can be innocent..

Court: It is not the defence here anyway, that touch was innocent.

#SupremeCourt: There is one Tripura judgement that you have appended..

Sr. Adv. Geeta Luthra: There are two judgements that may be pertinent. In Ravi vs. State, it is on another context. “Allegation against the Appellant is of catching hold of the victim’s hand..”

#POCSOAct

Sr. Adv. Geeta Luthra: There are four facts in this case. The…

#SupremeCourt: Let us concentrate on the basic issue. Whether skin to skin is necessary or not.

Sr. Adv. Geeta Luthra cites another United States case.

#SupremeCourt: Let us see the discussion.

Sr. Adv. Geeta Luthra: While penal statutes must be construed strictly, it was apparent that the statute was not only meant to protect only unclothed girl..

It is not necessary that the bare skin of minor be touched.

#SupremeCourt #POCSOAct

Sr. Adv. Geeta Luthra reads judgement in State Of Punjab vs Major Singh: “I think the essence of a woman’s modesty is her sex..” What is was trying to say whatever will come under 354 if it pertains to a child will also..

#SupremeCourt #POCSOAct

Bench discusses amongst themselves.

#SupremeCourt #POCSOAct

Justice Lalit reads a judgement submitted by Luthra:
“There is no requirement of skin to skin touching in so & so.. without making skin to skin contact..” This is slightly going in a different direction. We are completely satisfied with the earlier cases you cited.

#SupremeCourt: Ms. Luthra, we have understood the thrust of your submissions. Anything else?

Sr. Adv. Geeta Luthra: Just another 10 minutes..

Justice Lalit: No, that is a luxury! 2 minutes.

Sr. Adv. Geeta Luthra: Para 13 of the impugned judgement. “PW2 testifies that the appellant caught her hand” and that is why I referred to Ravi, it shows sexual behaviour. The, he tried to remove her salwar, that itself is sexual assault.

#SupremeCourt #POCSOAct

Sr. Adv. Geeta Luthra: Then he touched her breast and after she screamed, he covered her mouth. All four acts are sexual assaults individually and therefore, the court was completely wrong.

#SupremeCourt #POCSOAct

#SupremeCourt: Is the State counsel here? If not, we will turn to the Amicus.

#SupremeCourt #POCSOAct

Amicus Curiae Senior Advocate Siddhartha Dave takes the Bench through the scheme of the act.

#SupremeCourt #POCSOAct

Sr. Adv. Dave: Coming to the interpretation of Section 7, in Section 3 there is an absence of mens rea, which finds mention in Section 7.

My submission will be what is of importance is sexual intent to determine whether act falls under 7 or not.

#SupremeCourt #POCSOAct

Sr. Adv. Dave: In the first part of the Section there are body parts specified. Then, the second part mentions the sexual intent. So, if a man holds a child’s hand and the question is whether it is sexual assault or not, it will be whether sexual intent or not.

#SupremeCourt

#SupremeCourt: The act itself doesn’t suggest anything but with surrounding material, it can certainly be arrived at.

#POCSOAct

Sr. Adv. Dave: From the query that fell from My Lord, the last part is not specific to who is touching who, therefore, it would cover if an adult made the child touch himself.

Dave reads out Section 11 of the #POCSOAct.

#SupremeCourt

#SupremeCourt: There are two parts in Section 7, both are governed by sexual intent.

Sr. Adv. Dave: Yes, Your Lordship may lay down.

#POCSOAct

Sr. Adv. Dave: Submission is that for the parts that are sexual in nature, Court will be able to read sexual intent more easily but with parts that are non-sexual in nature, discerning intent will become more important.

#POCSOAct #SupremeCourt

#SupremeCourt: The applicability of the second part of S.7 is not to our interpretation. We will skip all other issues. We are restricted to whether skin to skin contact is requirement of the section.

#POCSOAct

Sr. Adv. Dave: My submission is that, if you are touching the sexual organs of the child, the sexual intent becomes more easily establish able.

#SupremeCourt #POCSOAct

#SupremeCourt: How much more time will you take, Mr. Dave?

Sr. Adv. Dave: I have a few High Court judgements.

#SupremeCourt: Mr. Luthra, how much time will you take?

Senior Advocate Sidharth Luthra: An hour..

Court: Okay, today we are not sitting till 5 o’clock since there is a meeting.

Sr. Adv. Sidharth Luthra: There are two aspects which your Lordship may keep in mind. One is that the interpretation aspect. Second is, I also have an SLP which is now been filed.

Sr. Adv. Sidharth Luthra: Other part will be evidence, I hope both will be seen. Because if your Lordship comes to a determination on this, my SLP will become infructuous.

#SupremeCourt

#SupremeCourt: When you are arguing, we'll take your SLP also. We'll list it will all other matters.

The State Counsel's absence was definitely felt today, he may be present tomorrow.

#SupremeCourt issues notice returnable immediately: Counsel for Petitioner at liberty to serve copy upon State.