Judge, who passed controversial POCSO orders, was appointed despite reservation by 2 SC judges

Justice Pushpa Ganediwala’s elevation as the Bombay HC judge was objected by two SC judges who had provided a detailed analysis of her judgements in the trial courts.

File photo of Bombay High Court | Commons

New Delhi: Justice Pushpa Ganediwala, who has hit the headlines this month after giving two controversial judgements in POCSO cases, was elevated as an additional judge of the Bombay High Court in 2019 despite reservations from two sitting judges of the Supreme Court, ThePrint has learnt.

Justice Ganediwala’s appointment as an additional judge was approved by the then collegium led by former Chief Justice of India (CJI) Ranjan Gogoi on 16 January 2019. She took the oath on 13 February 2019.

Sources told ThePrint that it was cleared even as the two judges, who had in the past served in the Bombay HC, had objected to her appointment in writing.

On 28 January, the present collegium, led by CJI S.A. Bobde, in a rare move, withdrew its proposal sent to the government to confirm Justice Ganediwala as a judge, following media reports on her two judgements related to child-sexual offences.

In her 19 January order, Justice Ganediwala acquitted a man allegedly involved in sexually assaulting a minor and convicted him for the offence of outraging modesty, holding that skin-to-skin contact was essential to prove sexual assault charges under Protection of Children from Sexual Offences (POCSO) Act, 2012. 

On 15 January, Ganediwala set free a 50-year-old man by ruling that holding the hand of a five-year-old girl and unzipping pants in front of her was not a sexual offence under POCSO.

When the SC collegium sent its recommendation to the government to confirm her as a permanent judge on 20 January 2020, it was unaware of these verdicts.

But before the verdicts were reported, one of the two judges mentioned above had raised objections in writing before the collegium against Justice Ganediwala’s confirmation.

‘Collegium yet to take a final decision on the issue’

When Ganediwala’s ‘no skin touch, no sexual assault’ verdict came under severe criticism from activists, jurists as well as Attorney General K.K. Venugopal, the two judges reached out to one of the collegium members with their concern over Justice Ganediwala’s confirmation.

After the 15 January order got reported, the collegium recalled the file from the government for a reconsideration.

Sources told ThePrint that the collegium is yet to take a final decision on the issue.

“The collegium has not met to deliberate on what action should be taken. It is possible that her probation period may be extended by two years,” said a source.

Justice Ganediwala, who will turn 52 in March, has a long tenure of 10 years as a judge.

‘Lack of knowledge of the law’

According to the usual procedure, a new judge’s appointment is notified as an additional judge for a period of one year. Depending upon his or her performance, he or she is either confirmed as a judge or the probation period is extended. 

Justice Ganediwala’s name was sent on 28 November 2017 to the top court by the Bombay High Court for elevation. She figured in the list of six district judges from Maharashtra, who were deemed fit to become judges of the HC.

Sources told ThePrint that the two SC judges who had objected to Ganediwala’s name had provided a detailed analysis in 2017-18 of the judgements she had authored in the trial courts to demonstrate her “lack of knowledge of the law”. 

“The letters had given examples of how she wrote verdicts that were legally not sustainable,” the source said.

However, the collegium disregarded the reservations expressed by the two judges then and processed her appointment.

At a meeting of the collegium on 16 January 2019, Ganediwala’s name was cleared for appointment as a judge of the Bombay HC.

The resolution uploaded on the Supreme Court website reads, “For purpose of assessing merit and suitability of the above-named recommendees for elevation to the High Court, we have carefully scrutinised the material on record, including certain complaints as well as the observations made by the Department of Justice in the file.”

“Having regard to all relevant factors, the Collegium is of the considered view that Smt. P.V. Ganediwala, Judicial officer is suitable for being appointed as Judge of the Bombay High Court.”