On March 14, 2022 the Hon’ble President of India accepted the resignation of Justice Pushpa Virendra Ganediwala as an Additional Judge of the Bombay High Court. Justice Ganediwala, who was elevated as an Additional Judge in 2019, had attained notoriety amongst the hoi polloi for three decisions widely reported in the press.
In January 2021, in the matter of Satish Ragde v. State of Maharashtra, she interpreted Section 7 of The Protection of Children From Sexual Offenses (POCSO) Act to mean disrobing the child and ‘skin to skin contact’ would be necessary to attract the charge of ‘sexual assault’. The accused, notwithstanding was convicted under Section 354 of the Indian Penal Code (IPC).
Adopting similar lines of reasoning, she acquitted the accused in Jageshwar Wasudeo Kawle v. State of Maharashtra and Libnus v. State of Maharashtra while retaining convictions on other charges. In the latter case, the accused was holding the hand of a minor and the zip of the pants was open.
On the January 21, 2021 the Collegium of the Supreme Court had recommended Justice Ganediwala to be appointed as a Permanent Judge. Promptly after these judgements, however, the Collegium scurried back and withdrew the aforesaid recommendation. This meant that Justice Ganediwala, after having served the judicature at Bombay, would be sent back to the district judiciary. She tendered her resignation a mere two days prior to the due date.
The decision of the Collegium has exposed a major fault line in that judiciary that would otherwise have been a non-issue in a democracy like ours. The Collegium has shown that, unfortunately, vestiges of discretionary despotism can be found within the four corners of the Supreme Court, and not just the executive branch.
Fundamentally, the questions that arise out of the three Ganediwala cases are of law. They are not of attitude, attribution or prejudice. And all legal questions, at the end of the day, must be dealt with the blunt force of law and jurisprudence. If the Supreme Court found disfavour with the way the cases had been decided, they could simply overrule the cases and set them right. The Supreme Court did as much on the 18th of November, 2021 in Attorney General for India v. Satish.
In withdrawing Justice Ganediwala’s recommendation, the Court sent a chilling message to the current and forthcoming judges that the jurisprudential whims of the Collegium, as well as its members’ desired moral object, must be fulfilled by them. Any freedom of thought to that end will not be entertained. This isn’t necessarily an intentional or deliberate forethought by the members of the Collegium, who have penned judgments in the past favouring broadly liberal values. It is merely an unfortunate consequence in fact.
What is more telling is that this was not merely a case where the Collegium did not deem her to not have the necessary merit — she was appointed by the same Collegium as Permanent Judge a week before the withdrawal — but rather one where the Court especially penalized her for her legal observations.
A superfluous point, albeit perhaps of some relevance, is that this judgement does not even resemble the past instances where the Constitutional Courts’ dicta have displayed gross insensitivity towards sexual crimes.
The irony further lies in the fact that the President’s approval came less than a week after a nationwide celebration of women in the legal fraternity noting the unique value they provide to the system. Not only has the Collegium let go of a female Justice for the High Court(s), but it has also forgotten the diversity it so yearns for resides in thought, not in mere identity. If the Collegium continues to discourage judges who bring forth novel lines of reasoning to the law, it militates against the freedom of the judges to speak their minds. A disproportionate impact of which will be felt by those like Justice Ganediwala.
Understanding and protesting this injustice against Justice Ganediwala is neither an endorsement of the crimes against children and their kind instantiated in the three cases nor an affirmation of the judgements by Justice Ganediwala. Whether her approach to construing the POCSO Act is correct or not is a matter for us to consider with a legal comb. Irrespective of that, to outcast certain figures from the judiciary because of their judicial leanings is an utterly dangerous practice with the risk of ossifying the intellectual tradition of the Indian judicial system.
More prominent in the vogue is the retirement of Justice Akil Kureshi who was celebrated by the legal community for his independent and gallant thinking to question the dogmas of the executive. If the words of ex-Chief Justice of India Ranjan Gogoi’s Justice For The Judge are to be believed, this proclivity in the Courtroom of his led the executive to block his elevation to the Supreme Court.
Bar the authority above — the executive and the Collegium respectively, the common denominators in Justice Kureshi and Justice Ganediwala’s cases are prominent. Both displayed persistent fidelity in their legal opinions and did not give way to public influence. And in both cases, we need not agree with their legal opinions to understand that their cases are symptoms of a colossal systematic failure to appreciate a diverse and vibrantly independent judiciary.
Perhaps most numbing has been the quietude of the legal fraternity towards these events. Perhaps they arise out of a fear of being understood as endorsing the heinous crimes that Justice Ganediwala judged, which yet serve no excuse to remain quiet. As will all flow of ideas, there will be dangerous ideas we will disagree on wholeheartedly. To analogize from the freedom of speech, if we censor them, we run the risk of devoiding ourselves of something useful.
Evelyn Beatrice Hall’s ‘I disapprove of what you say, but I will defend to the death your right to say it’, is much too a cliche an aphorism to call for with passion, and yet it will remain the emblem of a judicial culture that intends to prosper.