Controversial Bombay HC judge now faces ignominy of extended probation, writes Olav Albuquerque
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Judges infuse new meaning into the law made by the legislature, to make it effective, or sometimes – as in the case of two judgments rendered by a single judge of the Nagpur bench of the Bombay high court – ineffective. The problem here is an accused is presumed guilty until he proves himself innocent under the stringent Protection of Children from Sexual Offences Act (POCSO), 2012. But the more stringent the punishment, the weightier the evidence needed to convict a pervert.

The aim of the POCSO is clearly to deter paedophiles who sexually abuse children because the Indian Penal Code (IPC), 1860, is ineffective. Going by that yardstick, whether an alleged paedophile gropes a child wearing clothes or disrobes the child is immaterial. POCSO enunciates that sexual assault would imply first, touching the vagina, penis, anus or breast of a child. Second is when an adult makes a child touch his genitals. The third is any act with sexual intent, which involves physical contact. Aggravated sexual assault would mean penetration.

'Skin-to-skin contact'

Again, the legislature has thought it wise to abstain from mentioning whether it would be sexual assault to touch the genital area of a child who is wearing clothes or not. The key words are “sexual intent”, to which Justice Pushpa Ganediwala has added that an assault would arise only if there was “skin-to-skin” contact.

But this would defeat the very purpose of the law, which is to protect children from sexual predators such as 'X', who kept a helpless child locked in his room after misbehaving with her. By narrowing the definition of sexual assault to mean only instances of skin-to-skin contact, the judge is allowing sexual predators to get away. The aim of the legislature has been defeated by being hyper-technical in interpreting the statute. This is why the Supreme Court came to the rescue of the Bombay high court, without waiting for a division bench to quash Justice Ganediwala’s judgment.

In the second judgment, which also caused an uproar throughout the country, the same judge acquitted another alleged 50-year-old sexual pervert who held the hands of a five-year-old child and unzipped his trousers in front of her, asking her to sleep with him. The judge pointed out this would not amount to aggravated sexual assault. She reversed the conviction of the man, Libnus Kujur, for aggravated sexual assault.

Uproar over judgments

In an earlier judgment, the same judge had acquitted a man of rape against a minor girl, holding the complainant’s testimony was not of sterling quality to convict him without corroboration from other sources. As if all this was not enough, in a fourth judgment, the same judge laid down that it was impossible to believe that the alleged rapist could gag, disrobe a girl himself and then engage in penetrative sex without the victim raising an alarm.

These judgments not only caused an uproar throughout the country but also resulted in the Supreme Court collegium recalling their confirmation of the same judge from the government. This by itself proves the collegium system of appointing judges is imperfect because two senior Supreme Court judges, A M Khanwilkar and D Y Chandrachud had earlier expressed reservations about the appointment of Justice Ganediwala. This is why a collegium member had voted against her being elevated from a district judge to the high court. But, as in previous times, the dissenter was overruled.

The point here is not that both acquittals seem to defeat the aim of POCSO but that a woman judge, who was a deputy director of the state judicial academy, could not envisage the cascading effect her acquittals could have on those charged under POCSO. A judge has to interpret the statute in such a way to ensure that no absurd result follows from a strict and narrow interpretation. Obviously, Justice Ganediwala has not done that. She has interpreted it on the presumption that the accused is innocent and the prosecution has failed to prove him guilty. But POCSO reverses this dictum.

'Exposure and training'

The collegium decided to recall their letter making Justice Ganediwala a permanent judge of the Bombay high court, as it felt she needed “more exposure” in sensitive cases. “There is nothing personal against her. She needs exposure and may not have dealt with these types of cases when she was a lawyer…She needs exposure and training,” sources within the Supreme Court tried to rationalise the recalling of her confirmation. So, 50-year-old Justice Ganediwala faces the prospect of being reverted as a district judge or continuing as an additional judge of the Bombay high court. If she continues as an HC judge, she has 12 years to rise to become a chief justice of some other high court after she is confirmed because she cannot be kept on probation indefinitely.

Justice Ganediwala has declared on the official website that she is a gold medallist BCom, LLB and LLM degree-holder and was selected directly as a district judge, before rising to become the principal district judge at Nagpur. This means she wrote the confidential reports of judicial officers under her. She also imparted training to newly-selected judges at the state academy. This is what prompted retired Supreme Court Judge Madan Lokur to wonder what kind of training she imparted.

There have been other cases of judicial officers being elevated and then reverted, such as Narayan Surendra Amonkar in Goa who was reportedly elevated as an assistant sessions judge but later reverted to the post of judicial magistrate first-class and civil judge senior division, in which post he will continue until he retires. There was no charge of lack of integrity against him just as there is no whisper of lack of integrity against Justice Ganediwala. But honesty and intelligence to mould the law or interpret it according to the changing circumstances of the case are two different things.

Finally, there have been many lawyers of the Bombay high court who were elevated as judges and resigned before confirmation, to continue practising as senior advocates. A PIL was filed seeking that these senior advocates who were elevated as additional judges but resigned before confirmation should be barred from practising in the same high court.

But the PIL was dismissed. These lawyers-turned-judges-turned-senior advocates are Y S Jahagirdar, A Y Sakhare, S U Kamdar, Girish Godbole and Ashutosh Kumbhakoni. The last-named, who resigned before confirmation because he had written to the then President of India Pratibha Patil, to ensure he was not placed below judges from the subordinate judiciary who had been elevated as high court judges. When he did not receive a reply, Kumbhakoni resigned and he is now the advocate general of Maharashtra. If Justice Ganediwala is not confirmed, she may join these lawyers who were once judges of the high court but now have the distinguished tag of being “senior advocates”.

The writer holds a PhD in law and is a senior journalist-cum-lawyer of the Bombay high court.

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