Uncertainty over Bombay HC judge behind controversial POCSO rulings

  • Justice Ganediwala’s fate hangs in the balance since her tenure as an additional judge ends on February 12.
The CJI consulted the two other most senior judges in the SC collegium, justices NV Ramana and Rohinton F Nariman, before taking this unparalleled step.(HT_PRINT)
The CJI consulted the two other most senior judges in the SC collegium, justices NV Ramana and Rohinton F Nariman, before taking this unparalleled step.(HT_PRINT)
Published on Jan 31, 2021 03:38 PM IST
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ByUtkarsh Anand, New Delhi

Uncertainty looms over the future of justice Pushpa Ganediwala of the Nagpur bench of the Bombay high court after the Supreme Court collegium, in an unprecedented step, withdrew its proposal to make her a permanent judge in the high court in view of her controversial rulings on sexual assault on children under the Protection of Children from Sexual Offences Act (POCSO).

Justice Ganediwala’s fate hangs in the balance since her tenure as an additional judge ends on February 12 and if the SC collegium, headed by the Chief Justice of India SA Bobde, decides not to extend her term as an additional judge, she will cease to be a judge.

Under the constitutional provisions, an additional judge can be appointed for a maximum period of two years unlike permanent judges, who are appointed till the age of 62. Further, an additional judge can either be made permanent following a recommendation by the collegium to the Central government, or the tenure can be extended for up to two years, pending review of the judge’s performance.

Justice Ganediwala has courted controversies after a series of her judgments on the interpretation of the POCSO Act came under severe criticism. In January 19 ruling, she held that groping a minor without removing her clothes was not a case of sexual assault but only of molestation, since there was no ‘skin to skin’ contact. This judgment was stayed by a Supreme Court bench, led by the CJI, on Wednesday. In another judgment on January 15, the woman judge had ruled that holding the hands of a minor and unzipping one’s trousers in front of her does not amount to “sexual assault.”

On Saturday, officials in the law ministry and the Supreme Court confirmed to HT that the collegium has recalled its recommendation to make justice Ganediwala a permanent judge in the Bombay HC. On January 20, the SC collegium had passed a resolution, and the file had reached the law ministry a day later.

However, the officials added, on January 25, a missive was sent by the SC collegium requesting for a withdrawal of the proposal to make justice Ganediwala a permanent judge. The note by the SC collegium stated that the proposal regarding the woman judge was to be reviewed again.

The law ministry then sent the file back with a short note that the proposal was being returned on a request by the collegium and that if a fresh proposal with respect to justice Ganediwala was to be sent again, the ministry will need around a week to process it.

“This is unprecedented. There has been no such instance when after sending a proposal to the government for appointing an additional judge as a permanent judge, the collegium has, in less than a week’s time, withdrawn its recommendation,” said a law ministry official, who didn’t wish to be named.

Meanwhile, officials in the top court have said that the CJI, who has Bombay HC as his parent high court, consulted the two other most senior judges in the collegium, justices NV Ramana and Rohinton F Nariman, before taking this unparalleled step.

Justices AM Khanwilkar and DY Chandrachud, who also hail from Bombay HC as their parent high court, had also drawn the CJI’s attention to the contentious judgments by the woman judge, imploring the CJI to withdraw the proposal.

After this move by the collegium, a state of doubt prevails over justice Ganediwala’s continuance as a high court judge. According to the high court rules and the pertinent norms, justice Ganediwala, 42, cannot be sent back to the subordinate judiciary either as a sessions judge or a district judge.

There are some other options also available with the SC collegium. It can extend justice Ganediwala’s term for any term between six months and two years for reviewing her performance.

Alternatively, the collegium may also choose to send a proposal to the government after February 12 to appoint her as an additional judge, but that would make her appointment as good as a fresh one, and a break in her service will adversely impact justice Ganediwala’s seniority.

Former CJI KG Balakrishnan told HT: “It is not a wrong step taken by the chief justice. It is not a simple decision but if there is a judgment which is in flagrant violation of the law, a chief justice is entitled to not make an additional judge a permanent judge.”

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Friday, December 03, 2021