Bombay High Court judge Pushpa Virendra Ganediwala has been at the end of receiving public flak for her controversial POCSO rulings recently.
The Supreme Court has reportedly withdrawn its recommendation to make Justice Pushpa V Ganediwala a permanent judge of the Bombay High Court in light of her controversial orders on two sexual assault cases in the recent past.
The Bombay High Court verdict regarding a case of groping of a minor girl sent shockwaves for its controversial statement. The case involved a 12-year-old girl who had reportedly been groped by a 39-year-old man in December 2016.
After four years, the Nagpur bench of the Bombay High Court headed by Justice Pushpa Ganediwala found that the accused did grope the child but it did not constitute sexual assault punishable with POCSO but instead constituted the offence of outraging a woman's modesty under IPC section 354. The reason? The girl reportedly had her top on and since there was no "skin to skin contact", the groping could not be ruled as an assault.
Justice Pushpa Ganediwala of the Nagpur bench of the Bombay High Court, in a judgment passed on January 19, held that there must be "skin to skin contact with sexual intent" for an act to be considered sexual assault. She said in her verdict that mere groping will not fall under the definition of sexual assault.
The POCSO Act defines sexual assault as when someone "with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault". The court, in its verdict, held that this "physical contact" mentioned in the definition of sexual assault must be "skin to skin" or direct physical contact.
The Bombay HC verdict has come as a shock not only to survivors but also to child safety and protection experts who feel that the move sets a "dangerous" precedent for defining sexual assault in court.
The Supreme Court on Wednesday stayed the Bombay High Court's controversial order acquitting an accused, which had stated 'skin-to-skin' contact necessary to be classified as sexual assault under the POCSO Act. Attorney General KK Venugopal said the order would set a dangerous precedent.
Following the first incident, the Nagpur bench of the Bombay High Court has held that “the act of holding a girl's hands and opening the zip of pants will not come under the definition of sexual assault” under the Protection of Children from Sexual Offences (POCSO) Act 2012. The act instead comes under the ambit of “sexual harassment” under Section 354-A (1) (i) of the Indian Penal Code, observed the bench.
The ruling was pronounced by a single bench of Justice Pushpa Ganediwala in a criminal appeal against the conviction and sentence awarded to a 50-year-old man for molesting a five-year-old girl.
The Session Court had convicted the man and ruled it to be "aggravated sexual assault" punishable under Section 10 of POCSO and sentenced him to five years of rigorous imprisonment and fine of Rs 25,000 with a default simple imprisonment for six months.
However, Justice Ganediwala set aside his conviction under Sections 8, 10 and 12 of POCSO Act, but held him guilty under Section 354A (1) (i) IPC, which carries a maximum imprisonment of three years.
The Nagpur bench observed that the case comes under the gambit of “sexual harassment” and not “sexual assault”. “The offence of sexual harassment under Section 354A (1) (i), which deals with physical contact and advances involving unwelcome and explicit sexual overtures, is attracted in the case,” it said.
Before being shot to 'controversial' fame in 2021, Ganediwala has presided over some other important judgments in the recent past.
Ganediwala was born in 1969 in Paratwada in Amravati District in Maharashtra. She has B.Com, LL.B, and LL.M degrees. Ganediwala was appointed as a District Judge in 2007, and served on the City Civil Court in Mumbai and the District and Family Courts in Nagpur. She later became the Principal District and Sessions Judge in Nagpur, and subsequently was appointed as the Registrar-General of the Bombay High Court.
In 2018, Ganediwala was one of several judges who were considered for appointment to the Bombay High Court, but was not appointed after the Bombay High Court recommended against it. The Supreme Court of India accepted the Bombay High Court's adverse recommendations and decided to defer consideration of her appointment. In 2019, Ganediwala's appointment was reconsidered, and she was appointed as an additional judge in the Bombay High Court.
In 2019, Ganediwala was part of a bench which headed a significant ruling, that highlighted that parole is limited right available to prisoners, and not merely an administrative decision. Notably, the Court has also struck down a provision that had barred convicts in Maharashtra from seeking multiple paroles in a year. In this regard, a Full Bench comprising Justices P N Deshmukh, Manish Pitale and Pushpa V Ganediwala struck down a proviso introduced to Rule 19 (2) of the Prisons Rules, 1959 under Section 59(5) of the Prisons Act, 1894.
Ganediwala has, along with two other judges, commuted death penalty sentences to life imprisonment in two cases while sitting on the Bombay High Court, in 2019. Both cases concerned the offence of murder.
In September 2020, Ganediwala and along with a fellow judge heard a case concerning the shortage of available hospital beds and treatment facilities for patients with Covid-19 in Nagpur, Maharashtra, and directed the State Government of Maharashtra to make available sufficient staff and facilities for treatment.
Ganediwala also rejected a plea to have the Joint Entrance Examination postponed (a national assessment examination held for admission to engineering courses) in light of the Covid-19 pandemic, as well as widespread flooding in parts of Maharashtra, but directed examining authorities to facilitate re-examinations for those who could not attend the scheduled examination date because of these difficulties.
In October 2020, Ganediwala and another judge directed government-run hospitals to constitute a panel and provide treatment to a pregnant woman who had been denied hospital consultations on the grounds that she had tested positive for Covid-19, and compared the treatment of patients with Covid-19 to the generational, social, and public discrimination caused by the practice of untouchability against Dalit communities.
Ganediwala has spoken publicly about the need to reduce pending cases in the family courts in Mumbai, and has criticised Maharashtra Police for failing to conduct investigations sufficiently, linking this to acquittals in criminal cases.