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SC collegium refuses to confirm Bombay HC judge who gave ‘skin-to-skin contact’ verdict

Justice Pushpa Ganediwala, who gave the ‘unacceptable’ and ‘absurd’ judgments in January 2021, will now have to go back to the subordinate judiciary.

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New Delhi: The Supreme Court collegium headed by Chief Justice of India N.V. Ramana and comprising justices U.U. Lalit and A.M. Khanwilkar has again decided not to make additional judge Justice Pushpa Ganediwala a permanent judge of the Bombay High Court. 

A decision to this effect was taken during the collegium meet on 14 December, sources told ThePrint.

“Considering all the material placed before the collegium and their opinions, the panel decided not to make her permanent. The Collegium even decided against giving her an ad hoc extension,” one of the sources said.

Justice Ganediwala had courted controversy after she delivered two verdicts in cases of child sexual abuse in January 2021, giving an extremely narrow interpretation of the Protection of Children from Sexual Offences (POCSO) Act — a stringent, gender-neutral law to try cases of sexual assault on children.

Justice Ganediwala’s judgments, when criticised in the media, had compelled the Supreme Court collegium in January this year to withdraw its resolution recommending her appointment as a permanent judge. 

But the collegium headed by the then Chief Justice of India S.A. Bobde approved her ad hoc extension as an additional judge for two years. However, it was turned down by the Centre, which cleared Justice Ganediwala’s extension for a year only in February.

Sources told ThePrint that the recommendation in January 2021 to make Justice Ganediwala a permanent judge was made despite two senior consulting judges of the top court (who served in Bombay before getting elevated to the SC) opposing it.

The Supreme Court collegium has had to revisit the issue of Justice Ganediwala’s elevation as a permanent judge now, as her tenure in the Bombay HC ends in February 2022, thereby necessitating a decision on her future.

Also read: SC sets aside Bombay HC ruling, says ‘skin-to-skin’ contact not necessary for sexual assault

Back to subordinate judiciary

The Supreme Court collegium, however, has confirmed the appointment of three other judges and given an extension as an additional judge to one more, all of whose files were sent to it along with that of Justice Ganediwala by the Bombay HC collegium. 

Another source added that Justice Ganediwala will now have to go back to the subordinate judiciary where she served as a district judge before she got elevated to the HC on 13 February 2019. 

Justice Ganediwala’s tenure as a HC judge ends on 13 February 2022. The judge turned 52 in March this year and will have a tenure of eight years as a district judge. 

As a HC judge, she would have been in office for 10 years, till the age of 62.  

Justice Ganediwala’s two controversial judgments were set aside in November by a Supreme Court bench which was headed by one of the three collegium members, Justice Lalit. 

In its verdict, the bench, also comprising Ravindra Bhat and Bela M. Trivedi, held the judge’s interpretation of the sexual assault provisions under POCSO Act was a “grave error” and “unacceptable”.

Elevated to HC despite objections 

Justice Ganediwala was elevated to the Bombay HC as an additional judge in January 2019 despite reservations from two sitting judges of the Supreme Court, whose parent HC is Bombay.

Before forwarding its proposal to the Centre on HC appointments, the SC collegium led by CJI and comprising two senior-most judges after him seek inputs on the candidates from sitting apex court judges who have served in the particular HC either as a judge or a chief justice. A decision is taken only after the inputs are received.

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. 

In the case of Justice Ganediwala, the collegium headed by the then Chief Justice of India Ranjan Gogoi cleared her appointment as an additional judge on 16 January 2019, disregarding written objections sent to it by the two judges.

Justice Ganediwala’s name was sent on 28 November 2017 to the top court when she figured in the list of six district judges from Maharashtra who were deemed fit to become judges of the Bombay HC.

The two SC judges who expressed reservations over her name had provided a detailed analysis of her judgments she had authored in the trial courts between 2017 and 2018 to demonstrate her “lack of knowledge of the law”. 

Verdicts stunned legal experts

The two objectionable judgments that stunned legal experts were delivered by Justice Ganediwala on 15 and 19 January 2021, while she was sitting in the Nagpur Bench of the Bombay HC.

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.

In her 19 January order, Justice Ganediwala acquitted a man allegedly involved in sexually assaulting a minor and convicted him only for the offence of outraging modesty, holding that “skin-to-skin contact was essential” to prove sexual assault charges under POCSO.

The collegium headed by former CJI Bobde was unaware of the two verdicts when it had forwarded her name as a permanent judge to the Centre. Following critical media reports on the two judgments and criticism by legal experts, including by Attorney General K.K. Venugopal, the collegium recalled its recommendation, withdrew its proposal on 28 January and suggested her ad-hoc extension for two years.

Appeals were filed on the judicial side in the Supreme Court by the Attorney General of India, the National Commission for Women and the Maharashtra government.

The apex court had asserted that “restricting the interpretation of the words ‘touch’ or ‘physical contact’ to ‘skin-to-skin contact’ would not only be a narrow and pedantic interpretation of the provision contained in POCSO Act, but it would lead to an “absurd interpretation of the said provision”.

 (Edited by Saikat Niyogi)

Also read: ‘Absurd interpretation’ — experts say HC’s POCSO order in groping case wrong on many levels


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