The Supreme Court Collegium is all set to withdraw its recommendation to appoint Justice Pushpa V Ganediwala, the additional judge of the Bombay High Court who had recently issued a strange verdict about groping, as a permanent judge of the court. The collegium arrived at the decision after close scrutiny of the recent judgments for their controversial interpretation of sexual assault under the Protection of Children from Sexual Offences Act, 2012 (POCSO) Act.
The collegium may either send the judge back to the district judiciary from where she was elevated in February 2019 or extend her probation by a couple of years, sources said. They said that the collegium would more likely go for the second option.
From tacit requests for resignations to ensuring alternative quasi-judicial appointments, the Supreme Court’s unique in-house mechanism of appointing judges made indirect interventions in the past while dealing with concerns on the conduct of non-permanent high court judges.
By breaking this convention, sources said, the collegium would set a precedent for direct intervention when a judge’s actions are closely scrutinised. It would additionally send a strong message to judges to abide by judicial propriety. “The only issue that the collegium dealt with was that of the merits of the verdicts and nothing more. There is no question of the judge’s probity or integrity,” a source said.
On 19 January, Justice Ganediwala had acquitted a man of sexual assault, ruling that pressing the breasts of a child over her clothes without direct “skin to skin” physical contact did not constitute “sexual assault” under the POCSO Act.
Saying that Section 8 of POCSO provided for stringent punishment of five years’ of rigorous imprisonment, the judge had observed that “stricter proof and serious allegations are required”. So the man was convicted “under minor offence under Section 354 of IPC and sentenced to undergo rigorous imprisonment,” the judge said. The maximum sentence is five years and the minimum one year for an offence under this section.
On 27 January, the Supreme Court stayed this order.
The judge was born in 1969 at Paratwada in Maharashtra’s Amravati district. She was directly elevated as a district judge in 2007. She was a panel advocate for banks and insurance companies. She also taught in various colleges in Amravati and the Amravati University.
The high court had first recommended the name of the judge for appointment as an additional judge of the Bombay High Court in November 2017. The name came up before the SC collegium in September 2018 along with those of five other judicial officers from the state. The collegium postponed her candidature.
“As regards Smt PV Ganediwala, Judicial Officer… having regard to the material on record and all relevant factors, her case deserves to be deferred for some time. The proposal would be taken up for consideration by the Collegium after some time,” said the collegium statement on 11 September 2018. The three-member collegium at the time comprised then Chief Justice of India Dipak Misra, Justice Ranjan Gogoi and Justice Madan Lokur.
The collegium, at that point comprising former CJI Ranjan Gogoi, former Justice AK Sikri and (then) Justice SA Bobde, took up the recommendation of the high court again in January 2019.
Now, on 16 January 2019, the collegium said: “Having regard to all relevant factors, the Collegium is of the considered view that Smt PV Ganediwala, Judicial Officer, is suitable for being appointed as Judge of the Bombay High Court.”
The collegium had received two strong notes of dissent from consultee judges of the Bombay High Court Justices AM Khanwilkar and DY Chandrachud, sources said. Despite these, the collegium had sent its recommendation and she was subsequently appointed as an additional judge. “Even then the issue was the merit of her judgments. It seemed that the judge had more experience in teaching rather than in legal practice,” said a source.
While the CJI-led three seniormost judges of the Supreme Court constitute the collegium that decides on the appointment of judges to high courts, they do consult judges familiar with the working of particular high courts for their views.
Additional judges are appointed to high courts either from the bar directly or state judiciary under Article 224 (1) of the Constitution of India for a period not exceeding two years.
The age of retirement for additional judges of high courts is 62 years. Additional judge posts are constitutionally provisioned to address the “increased burden of the court”. However, they are increasingly used as probationary periods for judges before they are promoted as permanent judges, as constitutional immunity kicks in, once a judge is made a permanent judge, to protect them for removal from office. According to the constitution of the country, the impeachment of a judge is the only process to remove him or her of a constitutional court from office.
The system subjects district judges to the disciplinary jurisdiction of the high court. However, there is no mechanism to check the performance of a permanent judge.
If a member of the bar, appointed as an additional judge, is neither given an extension nor promoted as a permanent judge, he or she demits office automatically. However, if a judge were to be elevated from the state judiciary, as is the case with the controversial judge, she may have to return to the previous office as a district judge.