In a rare instance of demotion of a high court judge, the Supreme Court Collegium has decided not to recommend the name of Justice Pushpa V Ganediwala as permanent judge of Bombay High Court after two of her verdicts were closely scrutinised for controversial interpretation of sexual assault under Prevention of Children from Sexual Offences (POCSO) Act, 2012.
Justice Ganediwala is currently an additional judge of Bombay High Court. The collegium’s decision means she would be demoted back to district judiciary, reports The Indian Express.
The Indian Express has learnt that apart from the two controversial judgments, the Collegium found a troubling “consistent pattern” in the judge’s verdicts.
The Collegium for deciding appointments in high courts comprises Chief Justice of India N V Ramana, and Justices A M Khanwilkar and D Y Chandrachud.
Additional judges to high courts are appointed either from the Bar directly or state judiciary under Article 224 (1) of the Constitution for a period not exceeding two years. Their retirement age is 62 years. Additional judge posts are constitutionally intended to deal with the “increased burden of the court” but are increasingly used as probationary periods for judges before they are promoted as permanent judges.
Born in 1969 at Paratwada in Maharashtra’s Amravati district, Justice Ganediwala was appointed district judge in 2007.
In 2019, she was appointed additional judge of Bombay High Court at Nagpur. The Supreme Court Collegium’s approval came after its decision was deferred earlier in 2018.
Her name was first recommended by the high court in November 2017 and came up before the Supreme Court Collegium in September 2018 along with five other judicial officers from the state. The Collegium then comprising the then CJI Dipak Misra and Justices Ranjan Gogoi and Madan Lokur deferred her candidature. The Collegium then received two strong notes of dissent from Bombay High Court judges who were consulted on the appointment – Justices Khanwilkar and Chandrachud. Despite this, she was appointed in 2019 by a Collegium comprising the then CJI Ranjan Gogoi and Justices A K Sikri and S A Bobde.
Two of Justice Ganediwala’s verdicts concluded that it will not amount to an offence of sexual assault under Section 7 of POCSO Act if there is “no direct physical contact, i.e. skin to skin” between the accused and the victim.
In November, Supreme Court quashed two judgments of the Nagpur bench of Bombay High Court, holding that the most important ingredient for constituting an offence of sexual assault under Section 7 of POCSO Act is the “sexual intent”, and not “skin-to-skin” contact with the child.
The Bombay HC Collegium had in July recommended the names of five additional judges to be appointed permanent judges. According to a statement by the Supreme Court Collegium on Thursday, three judges – Justices Madhav Jayajirao Jamdar, Amit B Borkar and S Dattatrey Kulkarni – have been recommended for appointment as permanent judges and Justice Abhay Ahuja’s tenure has been extended by a year.
