SC withdraws recommendation for Bombay HC judge who delivered controversial POCSO judgements

Interestingly, while the withdrawal follows backlash to Justice Pushpa’s skin-to-skin judgement, the collegium recommended her on January 20, a day after she gave the controversial verdict
SC withdraws recommendation for Bombay HC judge who delivered controversial POCSO judgements

Reports have emerged that the Supreme Court collegium had withdrawn their consent to make Justice Pushpa V Ganediwala a permanent judge of the Bombay High Court. This withdrawal comes soon after her acquittal of an accused from a POCSO charge, citing that no sexual assault occurred since there was no skin-to-skin contact.

Interestingly, the SC collegium had recommended making permanent Justice Pushpa, who is currently an additional judge in the Bombay HC, on January 20, a day after her controversial skin-to-skin verdict. The decision to withdraw the consent came after senior SC Justices DY Chandrachud and AM Khanwilkar — both hailing from Maharashtra — conveyed their opposition to the matter. While Chief Justice of India SA Bobde initially disagreed, he later agreed with the decision to withdraw the consent.

On January 19, Justice Pushpa delivered a controversial judgement interpreting “physical” in Section 7 of the Protection of Children from Sexual Offences as skin-to-skin. Thus, according to her, the accused action of pressing the breasts of a minor over her salwar did not amount to sexual assault as per the relevant section in POCSO act. While this particular verdict received widespread criticism from across the country, this wasn’t her first problematic POCSO verdict.

On January 14, she reversed a conviction order citing that the statement of the rape victim was not of “sterling quality”. Justice Pushpa noted, “She does not depose with regard to dates, times, who were present in the house at the relevant time, how the other members of the house permitted the unmarried boy and girl to sleep together, how many rooms were there in the house, how could the prosecutrix and the appellant/accused got privacy, under what circumstances the prosecutrix was forced to establish a physical relationship with the appellant/accused, etc.” However, while the judge went on to add that the testimony of the victim is sufficient for a conviction of the accused, the same ought to inspire confidence of the court.

On January 15, in another POCSO verdict, she noted, “The acts of ‘holding the hands of the prosecutrix’, or ‘opened zip of the pant’ as has been allegedly witnessed by PW-1, in the opinion of this Court, does not fit in the definition of ‘sexual assault’.” This was while the mother of the child had testified that she had seen the accused taking her daughter into the room whilst his zip was open. While the judge had acquitted the accused from a few sections, she maintained the others but reduced the sentence to five months, which the accused had already served by then.

In the January 19 verdict, she said, “Considering the stringent nature of punishment provided for the offence, in the opinion of this Court, stricter proof and serious allegations are required. The act of pressing the breast of the child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of ‘sexual assault’.” On Wednesday, the Supreme Court bench comprising of CJI SA Bobde stayed the acquittal, after Attorney General KK Venugopal submitted that the HC judgement was “unprecedented”. The latter noted that the verdict that “skin-to-skin” contact was necessary for sexual assault is “likely to set a dangerous precedent”. The SC directed the Attorney General to file a formal petition on the matter.

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