Pushpa Virendra Ganediwala

Pushpa Virendra Ganediwala (born 11 March 1969) is a sitting additional judge of the Bombay High Court in Maharashtra, India.[1] She has adjudicated a number of cases concerning the ongoing Covid-19 pandemic in India. In 2021, the Supreme Court of India took the unusual step of withdrawing their recommendation to confirm her appointment as permanent, after Ganediwala adjudicated in three cases concerning sexual assault to acquit convicted offenders on appeal. The judgments attracted wide public censure for their misinterpretation of laws against sexual assault, and one of the rulings, in which Ganediwala reduced the sentence and partially acquitted a man for an assault against a twelve year girl child, was stayed by the Supreme Court on special request from the Attorney General of India.

Judge

Pushpa Virendra Ganediwala
Judge of Bombay High Court
Assumed office
13 February 2019
Nominated byRanjan Gogoi
Appointed byRam Nath Kovind
Personal details
Born (1969-03-11) 11 March 1969
Paratwada, Amravati

Life

Ganediwala was born in 1969 in Paratwada in Amravati District in Maharashtra. She has B.Com, LL.B, and LL.M degrees.[1]

Career

Litigation

Ganediwala initially practiced law in Amravati District Court, and also lectured on law at Amravati University.[1]

Judicial

Ganediwala was appointed as a District Judge in 2007, and served on the City Civil Court in Mumbai and the District and Family Courts in Nagpur. She later became the Principal District and Sessions Judge in Nagpur, and subsequently was appointed as the Registrar-General of the Bombay High Court.[1]

In 2018, Ganediwala was one of several judges who were considered for appointment to the Bombay High Court, but was not appointed after the Bombay High Court recommended against it. The Supreme Court of India accepted the Bombay High Court's adverse recommendations and decided to defer consideration of her appointment. In 2019, Ganediwala's appointment was reconsidered, and she was appointed as an additional judge in the Bombay High Court.[1][2][3] She is currently posted to the Nagpur bench of the Bombay High Court.

As Registrar-General of the Bombay High Court, Ganediwala took the widely-reported decision of suspending City Civil and Sessions Judge Ajay Dinode, while he was hearing a case relating to an alleged Rs.56,000 million fraud in relation to the National Spot Exchange Limited, causing the case to be delayed further.[4][5]

Ganediwala has, along with two other judges, commuted death penalty sentences to life imprisonment in two cases while sitting on the Bombay High Court, in 2019. Both cases concerned the offence of murder.[6]

In 2020, Ganediwala heard and passed directions in a number of cases relating to the Covid-19 pandemic in India. In September 2020, Ganediwala and another 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.[7] In the same month, Ganediwala rejected a plea to have the Joint Entrance Examination postponed (a national assessment examination held for admission to engineering courses) in light of the Covid-19 pandemic, as well as widespread flooding in parts of Maharashtra, but directed examining authorities to facilitate re-examinations for those who could not attend the scheduled examination date because of these difficulties.[8] In October 2020, Ganediwala and another judge directed government-run hospitals to constitute a panel and provide treatment to a pregnant woman who had been denied hospital consultations on the grounds that she had tested positive for Covid-19, and compared the treatment of patients with Covid-19 to the generational, social, and public discrimination caused by the practice of untouchability against Dalit communities.[9]

Ganediwala has spoken publicly about the need to reduce pending cases in the family courts in Mumbai,[10] and has criticised Maharashtra Police for failing to conduct investigations sufficiently, linking this to acquittals in criminal cases.[11]

On 22 January 2021, the Supreme Court confirmed the Bombay High Court's recommendation that Ganediwala's appointment should be made permanent but withdrew that recommendation on 29 January 2021 in light of three rulings that Ganediwala made, all of which involved acquittals or reductions of sentences in cases concerning sexual assault.[12][13]

2021 Sexual Assault Rulings

In January 2021, Ganediwala adjudicated an appeal against a trial court that had convicted a 39 year old man of taking a 12 year old female child to his home on the pretext of offering her food, and sexually assaulting her. The trial court had sentenced the offender to three years in prison, which is the minimum sentence for sexual assault against children under the Protection of Children from Sexual Offences Act (POCSO Act). Ganediwala reduced the three year sentence to one year, holding that while the man had committed the offense of 'outraging a woman's modesty' under section 354 of the Indian Penal Code, it did not amount to a sexual offense against a child because he had groped her through her clothing. Ganediwala ruled that for an offense to qualify as sexual assault under the POCSO Act, there had to be "...skin to skin contact with sexual intent." The decision was widely reported.[14][15][16][17] She also adjudicated in two more cases concerning sexual assault against minors. In a second case, Ganediwala ruled that the acts of a man who took touched a female child's hand and exposed himself to another five year old female child did not constitute offences under POCSO because there was no physical contact between the children and the man.[18] In a third case decided in the same period, Ganediwala acquitted a man convicted of sexual assault against a woman, holding that the survivor's testimony was unreliable, and that the absence of signs of violent struggle indicated it could not have been non-consensual.[19][20]

Ganediwala attracted wide criticism for the first concerning 'skin to skin' contact, and the National Commission for the Protection of Child Rights asked the Maharashtra government to file a letters patent appeal in the Bombay High Court, to have the judgment reversed.[21] the National Commission for Women also expressed their intention to appeal the ruling, noting that it would have "...a cascading effect on various provisions involving safety and security of women in general but also subject all women to ridicule."[22] Several public figures and women's rights activists criticised the interpretation offered by Ganediwala.[23][24] Retired Judge Ajay Thipsay described the order as "not sound" and "...a little absurd," noting that there was no legal basis for Ganediwala's requirement of 'skin to skin' contact within the Act.[25] Child rights activists noted that the language of POCSO specifically criminalizes attempts at sexual assault as well, and that this had not been considered.[25] Politician Brinda Karat described Ganediwala's reasoning as unacceptable, noting that the case raised "questions of the competence and standards of those mandated to bring justice in sexual assault cases."[26]

On 27 January 2021, the Attorney-General of India mentioned the ruling before Supreme Court, noting that it warranted the Court's attention and describing it as a "...very disturbing conclusion." The Supreme Court agreed to hear the matter suo motu and temporarily stayed the judgment, allowing the Attorney-General to file a petition for a more detailed consideration.[27] On 29 January, the Supreme Court withdrew a recommendation that they had made on 22 January 2021 to make her appointment permanent, mentioning the three sexual assault rulings above as the reason for questioning her fitness to continue as a High Court judge.[27][28]

References
  1. "Chief Justice and Sitting Judges: Mrs. Pushpa Ganediwala". Bombay High Court.
  2. Devika (2019-02-08). "Bombay HC | Pushpa Virendra Ganediwala appointed as Additional Judge". SCC Blog. Retrieved 2020-10-19.
  3. "SC collegium clears elevation of four judges to Bombay HC". Mumbai Mirror. Retrieved 2020-10-19.
  4. Sharmeen Hakim. "Bombay HC asks judge hearing NSEL case to step down". Mumbai Mirror. Retrieved 2020-10-19.
  5. "Setback for NSEL trial? Bombay HC asks judge hearing case to step down". Moneycontrol. Retrieved 2020-10-19.
  6. Project 29A at the National Law University, Delhi. "The Death Penalty in India | 2019 Annual Statistics Report" (PDF). National Law University Delhi.
  7. "Ensure enough beds, doctors available for Covid-19 patients: Bombay HC". Hindustan Times. 2020-09-11. Retrieved 2020-10-19.
  8. "Bombay High Court refuses to stay JEE-Main examination". The Hindu. 2020-09-01. ISSN 0971-751X. Retrieved 2020-10-19.
  9. "'COVID-19 patients are not untouchables': Bombay HC slams hospital for refusing to examine pregnant woman". mid-day. 2020-10-15. Retrieved 2020-10-19.
  10. "Make efforts to reduce pendency of cases: Justice Ganediwala". The Times of India. Retrieved 2020-10-19.
  11. "Lax,shoddy investigation leads to acquittals". The Indian Express. 2013-08-28. Retrieved 2020-10-19.
  12. Joshi, Neha. "Supreme Court Collegium recommends appointment of Justice PV Ganediwala as Permanent Judge of Bombay High Court". Bar and Bench - Indian Legal news. Retrieved 2021-01-26.
  13. Bench, Bar &. "[POCSO Acquittals] Supreme Court Collegium withdraws recommendation to make Bombay High Court judge permanent". Bar and Bench - Indian Legal news. Retrieved 2021-01-30.
  14. "Groping 'Without Skin-To-Skin Contact' Does Not Qualify As Sexual Assault: Bombay HC". Outlook India. Retrieved 2021-01-24.
  15. "Not sexual assault if minor is groped without skin to skin contact, intent: HC". Hindustan Times. 2021-01-24. Retrieved 2021-01-24.
  16. Hakim, Sharmeen (2021-01-24). "Pressing Breasts Without Disrobing Not 'Sexual Assault' As Per POCSO Act But Offence Under Sec 354 IPC : Bombay High Court". www.livelaw.in. Retrieved 2021-01-24.
  17. Joshi, Neha. "Groping 12-year-old child without removing her clothes not 'sexual assault' under POCSO Act, but only 'outraging modesty' under IPC: Bombay HC". Bar and Bench - Indian Legal news. Retrieved 2021-01-24.
  18. Saigal, Sonam (2021-01-28). "Bombay High Court judge quashes another POCSO conviction". The Hindu. ISSN 0971-751X. Retrieved 2021-01-29.
  19. Joshi, Neha. "Bombay High Court acquits rape convict after victim's testimony fails to inspire confidence". Bar and Bench - Indian Legal news. Retrieved 2021-01-30.
  20. Vidya. "Bombay HC acquits man of rape, says impossible for a single man to gag victim, remove her clothes without scuffle". India Today. Retrieved 2021-01-30.
  21. "NCPCR asks Maharashtra govt to file appeal against Bombay HC judgment on sexual assault". The Indian Express. 2021-01-25. Retrieved 2021-01-25.
  22. "'Ruling will have cascading effects': NCW to challenge Bombay High Court's groping judgment". The New Indian Express. Retrieved 2021-01-26.
  23. "Taapsee Pannu, Riteish aghast at Bombay HCs verdict that groping without skin to skin contact isnt sexual assault". Hindustan Times. 2021-01-25. Retrieved 2021-01-26.
  24. PTI (25 January 2021). "Obnoxious, unacceptable, outrageous: Activists on Bombay HC judgement". The Times of India. Retrieved 2021-01-26.
  25. Saigal, Sonam (2021-01-25). "HC order 'bad in law', say child rights experts". The Hindu. ISSN 0971-751X. Retrieved 2021-01-29.
  26. "Opinion: Groping A Child, If Shirt Is On, Isn't Sex Assault, Says Court". NDTV.com. Retrieved 2021-01-26.
  27. Roy, Debayan. "[BREAKING] Supreme Court stays Bombay High Court judgment which ruled skin-to-skin contact necessary for offence of 'sexual assault' under POCSO". Bar and Bench - Indian Legal news. Retrieved 2021-01-27.
  28. Mahapatra, Dhananjay (30 January 2021). "Controversial Pocso rulings cost Bombay high court judge her confirmation". The Times of India. Retrieved 2021-01-30.
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