New Delhi, Nov 18 (PTI) Justice S Ravindra Bhat, who wrote a separate but concurring judgment quashing the controversial skin-to-skin judgement of the Bombay High Court, on Thursday referred to English writer Lewis Caroll's "Alice in Wonderland" to explain the meaning of the word "touch" under the POCSO Act.

At the outset, Justice Bhat who was part of the bench also comprising Justices U U Lalit and Bela M Trivedi, clarified that he "completely and unreservedly" agreed with the findings and conclusions recorded in the comprehensive judgement of Justice Trivedi.

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He said the judgements under appeal remind one of a passage from Lewis Caroll's Alice in Wonderland, where he describes what words (or expressions) mean and whether they have an intrinsic meaning at all.

Justice Bhat, in his 13-page judgement quoted Caroll:

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“When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master—that's all.”

Justice Bhat wrote that the question is whether “touching” has an intrinsic meaning, as Alice said, or whether it means only something that judges say it means, no more, no less.

Tracing the history of the law, which existed before the Protection of Children from Sexual Offences (POCSO) Act was enacted, the top court judge said the Indian Penal Code criminalises assault or use of criminal force which outrages a woman's modesty (Section 354).

He said the expression 'criminal force' is defined in Section 350 and 'assault' is defined in Section 351.

Justice Bhat said these require an element of application of physical force, to women and the expression “modesty” was another limitation as older decisions show that such a state was associated with decorousness of women.

He said one cannot be unmindful of the circumstances in which these provisions were enacted by a colonial power 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. The advent of the Constitution of India revolutionised- at least in law, all that. Regardless of gender, race, caste, religion or region, or all of the acknowledged sectarian and discrimination enabling barriers, everyone enjoyed," Justice Bhat said.

He said Section 7 of POCSO, which is the provision involved, has to be viewed having regard to the mischief rule, the background, and history leading up to the enactment of the legislation (including the amendments to IPC in 2013) and its objects.

Justice Bhat said the emphasis of Section 7 is to address the felt social need of outlawing behaviour driven by sexual intent.

"A close analysis of Section 7 reveals that it is broadly divided into two limbs. Sexual assault, under the first limb, is defined as the touching by a person - with sexual intent - of four specific body parts (vagina, penis, anus, or breast) of a child, or making a child touch any of those body parts of “such person” (i.e. a clear reference to the offender) or of “any other person” (i.e. other than the child, or the offender).

"In the second limb, sexual assault is the doing of 'any other act with sexual intent which involves physical contact without penetration," he said.

Justice Bhat wrote that the Parliamentary intent and emphasis, however, is that the offending behaviour (whether the touch or other act involving physical contact), should be motivated with sexual intent.

"Parliament moved beyond the four sexual body parts, and covered acts of a general nature, which when done with sexual intent, are criminalized by the second limb of Section 7. The specific mention of the four body parts of the child in the first limb, and the use of the controlling expression “sexual intent” mean that every touch of those four body parts is prima facie suspect," he said.

The top court judge said the inference by the High Court that “touch” cannot necessarily involve contact with a child's sexual body parts through clothes, is based on a disingenuous argument.

"The fallacy, therefore, in the High Court's reasoning is that it assumes that indirect touch is not covered by Section 7- or in other words, is no “touch” at all. 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.

" The use of a spoon, for instance, 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. Similarly, when a stick or other object is pressed onto a person, even when clothed, their sense of touch is keen enough to feel it. Therefore, 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," he said.

(The above story is verified and authored by Press Trust of India (PTI) staff. PTI, India’s premier news agency, employs more than 400 journalists and 500 stringers to cover almost every district and small town in India.. The views appearing in the above post do not reflect the opinions of LatestLY)