Judge who gave skin-to-skin ruling not confirmed by SC collegium

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The Supreme Court collegium has decided against making Bombay high court judge, justice Pushpa Ganediwala, who delivered controversial rulings last year on “skin-to-skin contact” in the sexual assault of a minor, as a permanent judge in the high court, sparking uncertainty over her future.

People familiar with the development told HT that though justice Ganediwala’s name was considered by the collegium in its meeting on Wednesday, there were strong objections by some senior justices against promoting her as a permanent judge.

Even as the collegium, in the same meeting, made recommendations for making three other additional judges as permanent judges in the Bombay high court, justice Ganediwala’s name could not find favour with the collegium, the people cited above said. This is the second time this year that she has failed to make the cut for permanent judgeship in the high court.

Justice Ganediwala, 52, is currently posted at the Nagpur bench of the high court. Her term as an additional judge ends on February 12 next year, and if the collegium, headed by the Chief Justice of India (CJI) NV Ramana, decides not to make her a permanent judge or extend her term as an additional judge yet again, she will be reverted to being a district judge again in Maharashtra. She can continue as a district judge, if she so chooses, till the age of 60.

Besides the CJI, justices Uday U Lalit and AM Khanwilkar are part of the three-member collegium that takes decisions related to appointments, transfer and posting of high court judges.

Under the constitutional provisions, an additional judge can be appointed for a maximum 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 at one go, pending review of the judge’s performance.

Justice Ganediwala, who was initially appointed in February 2019, courted controversies after a series of her judgments in January 2020 on the interpretation of the Protection of Children from Sexual Offences (POCSO) Act came under severe criticism.

In the first 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. In another judgment, the judge ruled that holding the hands of a minor and unzipping one’s trousers in front of her does not amount to “sexual assault”. Both these judgments were recently overruled by a three-judge bench of the Supreme Court.

Former CJI KG Balakrishnan told HT: “An additional judge is made permanent after a complete assessment of his or her work. There are various factors that are taken into account before the chief justice takes a decision… Assessment of judgments authored by a judge is just one part of such assessment.”

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