By Ananya Bhatnagar
After much uproar over two controversial judgments from the Bombay High Court over the issue of sexual assault, the Supreme Court collegium halted the promotion of Justice Pushpa Virendra Ganediwala as a permanent judge of the High Court. The unprecedented move by the collegium came days after Justice Ganediwala, currently an additional judge in the Nagpur Bench of the Bombay High Court, passed two consecutive and controversial judgments in connection with cases relating to the sexual abuse of children.
The Supreme Court collegium had on January 20 passed a resolution promoting the woman judge and some others as permanent judges of the Bombay High Court.
The first order of Justice Ganediwala was passed on January 19 in Satish vs State of Maharashtra where she acquitted a 39-year-old man of charges under the Protection of Children from Sexual Offences (POCSO) Act, saying that pressing a minor’s breast without “skin-to-skin contact” cannot be termed sexual assault. While acquitting him, she stated that when there is “no direct physical contact i.e. skin to skin contact with sexual intent, without penetration, it would not amount to sexual assault under the POCSO Act.
“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 of 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,”
-Justice Ganediwala noted.
She had modified an order of the sessions court which had held the man guilty of sexual assault for groping a 12-year-old girl and removing her salwar. The Court, however, charged him under Section 354 IPC for outraging a woman’s modesty and sentenced him to a year’s imprisonment.
The next controversial judgment of Justice Ganediwala was on January 28 in Libnus vs State of Maharashtra where she was hearing a criminal appeal filed against the conviction and sentence of a 50-year-old man for molesting a five-year-old girl. The judge said that holding the hands of a minor and unzipping a pant does not amount to sexual assault under the POCSO Act.
The acts of “holding the hands of the prosecutrix”, or “opened zip of the pant” as has been allegedly witnessed by the victim, said the Court, does not fit the definition of sexual assault. However, the bench held that such acts would amount to sexual harassment and were punishable under Section 354-A(1)(i) of the IPC.
However, the apex court on January 27 stayed the judgment passed by Justice Ganediwala which had acquitted the man under the POCSO Act. A bench headed by Chief Justice of India SA Bobde stayed the acquittal after Attorney General KK Venugopal brought the matter to the Court’s notice. This is unprecedented and is likely to set a dangerous precedent, said the Court.
The two judgments have faced a lot of flak. Talking to India Legal, the UN Women Deputy Country Representative for India, Nishtha Satyam, said:
“Skin to skin contact cannot be a determinant of the trauma of the girl or the victim.” She added that even if there was no skin-to-skin contact that does not affect the grief of the victim and it cannot be reduced in any way. “The law should be victim-centered, not accused-centered.”
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Senior advocate Ashok Panda told India Legal: “How can a judge give such a judgment? Did she not have the sensitivity to see that the dignity of everyone is maintained? It is painful that such a thing has come to the mind of a judge, that too, a woman judge. I am glad that the apex court has now stayed this judgment.”