The Supreme Court has taken the tough decision of refusing to continue Justice Pushpa V Ganediwala, who stirred a controversy in January this year with her back-to-back judgments taking what was seen as a warped and insensitive view of sexual crimes against children, as an additional judge of the Bombay high court.
Now, with the collegium headed by CJI Ramana remitting her case back to the Bombay HC, Justice Ganediwala faces the prospect of being sent back as district judge.
The collegium comprising Chief Justice N V Ramana and Justices U U Lalit and A M Khanwilkar decided not to grant further extension of the tenure.
Her two controversial judgments, including one that held skin-to-skin contact is must for constituting a sexual offence, had forced the earlier collegium headed by then CJI S A Bobde to withdraw its January 20 recommendation to the government to appoint her as a permanent judge of the HC.
It then had recommended to the Centre to grant her a two-year extension as additional judge. However, the government disagreed and granted her a one-year extension, which will end on February 12, 2022.
On January 16, 2019, the collegium headed by then CJI Ranjan Gogoi and comprising Justices A K Sikri and Bobde had recommended her appointment as an additional judge of the HC.
At the time of initial consideration of the Bombay HC collegium’s proposal to appoint her as additional judge, the consultee judges in the SC — Justices A M Khanwilkar and D Y Chandrachud (both having Bombay as parent HC) — had conveyed their serious objections.
Nonetheless, the SC collegium approved the HC proposal and she was appointed as additional judge on February 13, 2019. Her profile in the Bombay HC website says: "She was meritorious throughout her educational career and awarded gold medals in BCom, LLB and LLM examinations". She was appointed as a district judge in 2007.
Justices Khanwilkar and Chandrachud had again registered their objections with the collegium prior to its January 19, 2021 decision recommending her appointment as a permanent judge. After the unsavoury developments, when the issue of deciding the fate of Justice Ganediwala was taken up by the present collegium this week, Justices Khanwilkar (now part of the three-member collegium for appointment of HC judges) and Justice Chandrachud opposed grant of further extension to her.
Justice Ganediwala had stunned many with her January 19 judgment acquitting a 39-year-old man of Section 7 offence under the Protection of Children from Sexual Offences Act on the ground that groping a 12-year-old girl without removing her top did not entail skin-to-skin contact and hence was not an offence under the Act. A Nagpur trial court in February 2020 had sentenced the man to three years’ imprisonment under Section 8 of the Pocso Act and Section 354 of IPC (outraging the modesty) for the unwanted contact.
"Admittedly, it is not the case of the prosecution that the appellant removed her top and pressed her breast. As such, there is no direct physical contact i.e. skin to skin with sexual intent without penetration," the judge had said.
Justice Ganediwala had said "stricter proof and serious allegations are required" given the stringent punishment of three to five years’ imprisonment that "sexual assault" entails under Pocso. "The act of pressing of breast of the child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside the top and pressed her breast, would not fall in the definition of ‘sexual assault’."
Within nine days of such an interpretation, Justice Ganediwala on January 28 delivered another judgment showcasing her judicial mindset. She gave a ruling acquitting a 50-year-old man that holding the hand of a five-year-old kid and unzipping pants in front of her could not be categorised as a sexual offence under Section 7 of the Pocso Act.
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(With input from news agency language)
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