§ Section 7 (in substance)

Whoever, with sexual intent, touches the private parts of the child, or makes the child touch the private parts 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.

Punishment, Section 8: imprisonment of not less than three years, which may extend to five years, and fine.

Aggravated form, Section 9, punishable under Section 10: imprisonment of not less than five years, extending to seven years, and fine, on the same families of circumstances as Section 5.

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

The Bombay High Court had held that groping a child over her clothes was not sexual assault under Section 7, reasoning that the section required skin-to-skin contact. The Supreme Court set that reasoning aside. It held that the most important ingredient of the offence is sexual intent, not skin-to-skin contact; that the expression physical contact must be given its ordinary meaning and cannot be read down to exclude touching through clothes; and that a narrow construction would defeat the very object of the Act by excluding a large class of harmful conduct.

The Court also stated the governing principle of construction: where a provision of a protective statute admits of two readings, the one that advances the object of protecting the child is to be preferred, and a construction that defeats that object is to be avoided.

Rule: under Section 7, touching with sexual intent is sexual assault whether or not there is skin-to-skin contact.

(i)

Uttering any word or making any sound, or making any gesture or exhibiting any object or part of the body, intending that it be heard or seen by the child

(ii)

Making a child exhibit the body or any part of it so as to be seen by the offender or any other person

(iii)

Showing any object to a child in any form or media for pornographic purposes

(iv)

Repeatedly or constantly following, watching or contacting a child, directly or through electronic, digital or any other means

(v)

Threatening to use, in any form of media, a real or fabricated depiction of any part of the body of the child, or of the child's involvement in a sexual act

(vi)

Enticing a child for pornographic purposes, or giving gratification for it

§ Two features of Section 11

No physical contact. Every clause describes conduct at a distance: words, gestures, exhibition, following, threats, or enticement. That is what separates it from Section 7.

The Explanation. Any question which involves sexual intent shall be a question of fact. The court decides it on the evidence, from the nature of the act, the words used, the surrounding circumstances and the conduct of the accused.

Punishment, Section 12: imprisonment which may extend to three years, and fine. There is no aggravated form of sexual harassment.

Common ingredient

Sexual intent

Sexual intent, a question of fact under the Explanation

Physical contact

ESSENTIAL, but without penetration

NOT involved

Punishment

Section 8: not less than three years, extending to five, and fine

Section 12: up to three years, and fine

Minimum sentence

Yes: three years

No minimum

Aggravated form

Yes: Section 9, punishable under Section 10 with five to seven years

None

Section 29 presumption of guilt

APPLIES: Section 29 names Sections 3, 5, 7 and 9

DOES NOT APPLY: Section 11 is not named

Section 30 culpable mental state

Presumed

Presumed

Classification under the JJ Act

Serious offence

Petty offence

Nearest general law

BNS s. 74: assault or criminal force with intent to outrage modesty

BNS ss. 75, 78 and 79: sexual harassment, stalking, and words or gestures insulting modesty

§ Why the Section 29 point matters

Section 29 raises a presumption that the accused committed the offence, unless the contrary is proved, where he is prosecuted for committing, abetting or attempting an offence under Sections 3, 5, 7 or 9.

Section 11 is not in that list. So in a prosecution for sexual harassment, the prosecution must prove the act without the benefit of the Section 29 presumption, although Section 30 still presumes the culpable mental state.

The distinction is examinable, and it follows directly from the physical contact test: the offences involving contact or penetration carry the stronger presumption.