BRIEF BACKGROUND OF THE JUDGMENT
Attorney General for India v Satish and Anr[1] is a decision of a three-Judge Bench of the Supreme Court of India that arose out of a controversy popularly, and notoriously, known as the “skin-to-skin” case. The judgment was delivered on 18 November 2021 in five connected appeals arising from two judgments of the Bombay High Court, Nagpur Bench, dated 19 January 2021 and 15 January 2021, both authored by Ganediwala J.[2] In each of the two connected matters, the High Court had held that the offence of “sexual assault” under Section 7 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”) required proof of direct, unmediated, “skin-to-skin” contact between the accused and the sexual parts of the child’s body, and that touching over clothing, without more, would fall short of the statutory definition and would, at best, amount to the lesser offence of outraging modesty under Section 354 of the Indian Penal Code, 1860 (“IPC”).
The ruling was met with immediate and widespread public and professional criticism, being seen as textually strained and substantively regressive from the standpoint of child protection.[3] The Attorney General for India mentioned the matter before the Supreme Court within days of the first judgment, apprehending that it would set “a dangerous precedent”,[4] and the Court stayed the operation of the High Court’s acquittal pending appeal. The final decision, authored by Trivedi J. for herself and Lalit J., with a separate but concurring opinion by Bhat J., unanimously reversed the High Court and restored the convictions recorded by the respective Special Courts.
The judgment is significant not merely for its result but for the interpretive method by which that result was reached. It represents a full-throated endorsement of purposive construction in a beneficial-cum-penal statute, an explicit rejection of a narrow, literalist reading of the words “touch” and “physical contact”, and a considered (if occasionally under-examined) treatment of the tension between the presumption of innocence and the “rule of lenity” on the one hand, and the protective object of a child-welfare statute on the other. It has since been consistently followed and cited with approval by the High Courts as the authoritative statement on the scope of Section 7 of the POCSO Act.
COMPOSITION OF THE BENCH
The appeals were heard and decided by a Bench of three Judges of the Supreme Court of India comprising Justice Uday Umesh Lalit, Justice S. Ravindra Bhat and Justice Bela M. Trivedi.
The principal and more elaborate judgment was authored by Justice Bela M. Trivedi, with Justice Uday Umesh Lalit concurring without a separate opinion. Justice S. Ravindra Bhat delivered a short but doctrinally significant concurring opinion, agreeing entirely with the conclusions of Trivedi J. but supplementing her reasoning with an explicit invocation of the “mischief rule” and a historical account of the legislative background that produced the POCSO Act.
[1] Attorney General for India v Satish and Anr, 2021 INSC 762; 2021 SCC OnLine SC 1076.
[2] Satish v State of Maharashtra, 2021 SCC OnLine Bom 72 (Criminal Appeal No 161 of 2020, decided 19 January 2021); State of Maharashtra v Libnus (Criminal Appeal No 445 of 2020, decided 15 January 2021).
[3] Attorney General for India v Satish and Anr, 2021 INSC 762, paras 1–6 (Trivedi J).
[4] Attorney General for India v Satish (Mentioning Order), 2021 SCC OnLine SC 800.