Uncertainty looms over future of Justice Pushpa Ganediwala of the Nagpur bench of the Bombay high court after the Supreme Court (SC) collegium, in an unprecedented step, has withdrawn its proposal to make her a permanent judge in the high court in view of her controversial rulings on sexual assault on children under the Protection of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 (Pocso) Act.
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 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, or the tenure can be extended as an additional judge for up to two years.
Justice Ganediwala has courted controversies after her judgments on interpretation of the Pocso Act came under criticism. In a January 19 ruling, she held that groping a minor without removing her clothes was not sexual assault but only molestation under IPC. This judgment was stayed by a Supreme Court bench, led by the CJI. In another judgment on January 15, 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”.
On Saturday, people 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. On January 20, the SC collegium passed a resolution, and the file reached law ministry a day later.
However, the people added, on January 25, a missive was sent by the SC collegium requesting for a withdrawal of the proposal. The note by the SC collegium stated that the proposal regarding the judge was to be reviewed again.
The law ministry then sent back the file with a note that the proposal was being returned on a request by the collegium and if a fresh proposal was to be sent again, the ministry will need around a week to process it.
“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after sending a proposal to the government for appointing an additional judge as a permanent judge, the collegium has withdrawn its recommendation,” said a law ministry official familiar with the matter.
Former CJI KG Balakrishnan told HT: “…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.”