Blog Details
- Home
- /
- Blog Details
Judges Judged for their controversial Judgments
All of a sudden, Justice Pushpa V Ganediwala and POCSO cases have become talk of the town. She is trending on internet searches and so as POCSO cases. Justice Pushpa V lost her opportunity of becoming the Permanent Judge of High Court. But, it is important to mention here that, she is not the only and first judge who had to face the consequences after passing the controversial judgments.
As of now, justice Pushpa V Ganediwala is topping the list but there are similar other judges who have passed controversial judgments and they have been either impeached due to their controversial remarks or they have themselves resigned before the process of impeachment began. One of them is that of Gujarat HC Judge Pardiwal. A group of 58 Rajya Sabha MPs moved an impeachment notice against him for his “objectionable remarks on the issue of reservation” for Scheduled Castes and Scheduled Tribes, while giving a ruling in a case against Patidar leader Hardik Patel. He noted, “If I am asked by anyone to name two things which have destroyed this country or rather have not allowed the country to progress in the right direction, then the same is, (i) Reservation and (ii) Corruption. It is very shameful for any citizen of this country to ask for reservation after 65 years of Independence. When our Constitution was framed, it was understood that reservation would remain for a period of 10 years, but unfortunately, it has continued even after 65 years of Independence,” he said.
Justice P.D. Dinakaran, Chief Justice of the Sikkim High Court, against whom the Rajya Sabha Chairman had set up a judicial panel to look into allegations of corruption, resigned in July 2011, before impeachment proceedings could be initiated against him.
In a controversial order, Justice Arun Mishra stated that he will not rescue from heading the Constitution Bench which was formed to decide the correctness of the interpretation give to Section 24(2) of the new Land Acquisition Act by the 2018 Indore Development Authority case. The petitioners in the case sought his recusal contending that there was the apprehension of bias as Justice Mishra had authored the 2018 judgment, which was under reference. Justice Mishra said that it was for the judge to decide whether to recuse or not and that it will not be in the interests of justice to recuse.
Justice Pushpa Ganediwala is taking rounds in critical discussions about her back-to-back controversial judgments on child sexual offenses. The judgments have been duly “disturbing and dangerous” as the Attorney General for India said. So much that it now costs her career as a permanent High Court Judge.
On 13th February 2019, she was appointed as an Additional Judge of the Bombay High Court. She served as an Additional Judge for a period of two years. On January 15, 2021, she held that the act of holding hands of a minor or the zip of the pants of the accused being open at the relevant time does not amount to sexual assault as defined under Section 7 of the POCSO Act. On 19th January 2021, she passes her controversial judgment on groping a child without "skin-to-skin contact with sexual intent" does not amount to the offense under the Prevention of Children from Sexual Offences (POCSO) Act. On 20th January 2021, a three-member collegium of the Supreme Court headed by the Chief Justice of India SA Bobde had approved the proposal to appoint Additional Judge of Bombay High Court, Justice Pushpa V Ganediwala as a permanent judge. This was stayed by the Supreme Court on 27th January 2021. Then on 30th January 2021, the Supreme Court Collegium withdrew 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 which ashamed the judiciary too.
Interestingly, it was a day after the last POCSO ruling that the Collegium recommended that she be made permanent judge though news about the ruling had not come in the public domain then. Then once it got viral in the public domain, they withdrew her recommendation.
In 2019, Justice Pushpa V 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. In September 2020, 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.
It is imperative that immorally wrong judgments are recognized and scrutinized by the public’s eye. With Justice Pushpa being talked about in the legal and research arena- that what was on her mind while passing the judgments or could she have passed something less hurtful to the real survivors, or could she do anything differently if it were her family or dear and near ones. This judgment took a toll on her career now. She cannot retain her appointment as the judge of the high court.
A judge may be removed from office through a motion adopted by Parliament on grounds of ‘proven misbehavior or incapacity’. While the constitution does not use the word ‘impeachment’, it is colloquially used to refer to the proceedings under Article 124 (for the removal of a Supreme Court judge) and Article 218 (for the removal of a High Court judge).
The Supreme Court has the right to disapprove, stay and correct the verdicts of the High Court and it has done that in numerous cases. Just because the verdict spurred out controversy and hurt the sentiments of many people doesn’t imply that the author of that verdict should be suppressed. I sincerely hope steps are taken to give justice to the children and other victims who have faced sexual, physical or mental abuse.
