The last few weeks saw a lot of public outcry in regard to a Bombay High Court judgement. The judge involved in the decision had faced a backlash from media, from the public, on social media from people from all walks of life, starting from social activists to the common man. These judgments dealt with cases filed under the Protection of Children from Sexual Offences (POCSO) Act
Controversial Judgements
Justice Pushpa Ganediwala faced a lot of public flak for two of her recent judgements. Both cases dealt with the Protection of Sexual Offences Act (POCSO). The first judgement stated that skin-to-skin contact was necessary for sexual assault. This statement was made when acquitting a man accused of groping a 12-year-old girl’s breast (Satish v State of Maharashtra).
The Court had stated that
“The act of pressing of 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’.”
The Court persecuted the man under Section 354 of the Indian Penal Code and acquitted him under Section 8 of the POCSO Act while stating that
“Admittedly, it is not the case of the prosecution that the appellant removed her top and pressed her breast. As such, there is no direct physical contact i.e., skin to skin with sexual intent without penetration.”
The second judgment was in the case of Libnus v State of Maharashtra. In this case, the Court held that holding a minor’s hand and unzipping her pants would not amount to a sexual offence under the provisions of the POCSO Act. It would amount to sexual assault under Section 354 A of the Indian Penal Code.
The Court had stated that
“The acts of ‘holding the hands of the prosecutrix’, or ‘opened the 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’.”
The Court also went on to state that
“Considering the nature of the act, which could be established by the prosecution and considering the punishment provided for the aforesaid crimes in the opinion of this Court, the imprisonment which he has already undergone would serve the purpose”
as the accused had spent 5 months in prison.
Matter
It was following these controversies that the decision to make Justice Pushpa a permanent judge in the Bombay High Court was revoked by the collegium. Justice Pushpa Ganediwala is an Additional Judge at the High Court of Bombay. Her tenure which ended on Friday has been renewed for a period of one year against the Supreme Court collegium recommendation of 2 years. The collegium consists of the Chief Justice S.A Bobde and Justices N V Ramana and R F Nariman. The judgements had been stayed by the Supreme Court following the intervention of the Attorney general of India, claiming that it set a ‘dangerous precedent.’
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