§ Section 7 (in substance)

Whoever, with sexual intent, touches the vagina, penis, anus or breast of the child, or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration, is said to commit sexual assault.

Limb 1

The offender TOUCHES the specified parts of the child

Limb 2

The offender MAKES THE CHILD TOUCH the specified parts of the offender or any other person

Limb 3: the residuary clause

ANY OTHER ACT with sexual intent which involves PHYSICAL CONTACT WITHOUT PENETRATION

§ What the prosecution must establish

• The victim is a child, below eighteen.

• One of the three limbs: a specified touching by the offender, a specified touching by the child at the offender's instance, or any other act involving physical contact.

• Sexual intent, which governs every limb.

• No penetration. If there was penetration to any extent, the act is penetrative sexual assault under Section 3, not sexual assault.

§ The ingredient that decides the case

Sexual intent is the most important ingredient of Section 7. That was the central holding in Attorney General for India v. Satish. The inquiry is into why the accused touched the child, not how.

It is a question of fact. The Explanation to Section 11 states in terms that any question involving sexual intent is a question of fact, and the same approach governs Section 7. It is decided on the evidence in each case.

How it is inferred. From the part of the body touched, the manner and duration of the contact, the words used, the setting, any attempt at concealment, and the conduct of the accused before and after.

Section 30 presumes it. In any prosecution under the Act for an offence requiring a culpable mental state, the court shall presume that mental state, and the accused must disprove it beyond reasonable doubt.

What falls outside. A genuine medical examination, a parent bathing or dressing a young child, or a touch in the ordinary course of care lacks sexual intent and is not within the section.

§ The residuary clause

• It widens the section. Limbs 1 and 2 name specific parts of the body. The residuary clause reaches any other act involving physical contact with sexual intent, whatever part of the body is touched.

• Physical contact bears its ordinary meaning. It is not confined to contact with the skin, and it covers contact through clothing.

• The upper boundary is penetration. Any penetration, however slight, takes the act into Section 3.

• The lower boundary is contact. Where there is no physical contact at all, the act may be sexual harassment under Section 11, but it is not sexual assault.

📖 Attorney General for India v. Satish, (2022) 5 SCC 545

The Bombay High Court had held that pressing a child's breast over her clothes was not sexual assault, because Section 7 required skin-to-skin contact, reading physical contact ejusdem generis with the specified touching. The Supreme Court reversed it. It held that sexual intent, not skin-to-skin contact, is the most important ingredient; that touch and physical contact bear their ordinary meaning and cannot be qualified by words the legislature did not use; that the narrow reading leads to absurdity, since an offender wearing gloves would escape entirely; and that a protective statute must be construed to advance its object.

Rule: touching a child with sexual intent is sexual assault under Section 7 whether or not there is contact with the skin. The Court restored the conviction under Section 8.

§ Section 8, and the aggravated form

Section 8. Whoever commits sexual assault shall be punished with imprisonment of either description for a term not less than three years, which may extend to five years, and shall also be liable to fine.

The minimum is binding. The court cannot impose less than three years once the offence is proved.

Aggravated sexual assault, Section 9, punishable under Section 10 with imprisonment of not less than five years, extending to seven years, and fine. The aggravating circumstances follow the same families as Section 5, and the 2019 Amendment added clause (v), on administering a drug, hormone or chemical substance for early sexual maturity.

Under the Juvenile Justice Act, Sections 8 and 10 are serious offences, not heinous, so a child in conflict with law accused of them is not liable to a preliminary assessment for trial as an adult.

The act

Penetration to any extent, or application of the mouth

Physical contact WITHOUT penetration

NO physical contact

Sexual intent

Inherent in the act

The key ingredient

The key ingredient, a question of fact

Punishment

Section 4: ten years to life

Section 8: three to five years

Section 12: up to three years

Aggravated form

Sections 5 and 6

Sections 9 and 10

None

Section 29 presumption

Applies

Applies

Does not apply

JJ Act classification

Heinous

Serious

Petty

§ The test in a single sequence

Was there sexual intent? If not, none of the three offences is made out.

Was there physical contact? If not, consider Section 11.

Was there penetration? If yes, Section 3. If there was contact without penetration, Section 7.

Is there an aggravating circumstance? If yes, Section 5 or Section 9 as the case may be.