Pushpa Ganediwala faced criticism over her interpretation of the POCSO Act. In her ruling, she stated that “there has to be ‘skin-to-skin contact with sexual intent'” for an act to be considered sexual assault under the Act.
Mumbai, March 13– The Bombay High Court on Thursday ruled that Pushpa Ganediwala, former High Court judge, is entitled to receive pension equivalent to that of a High Court judge. This comes after her demotion and resignation following controversial judgments related to the Protection of Children from Sexual Offences (POCSO) Act.
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Background of the Case
Pushpa Ganediwala faced criticism over her interpretation of the POCSO Act. In her ruling, she stated that “there has to be ‘skin-to-skin contact with sexual intent‘” for an act to be considered sexual assault under the Act. She also concluded that “holding hands of a minor girl and opening of zip of his (accused) pants” does not qualify as sexual assault. These judgments sparked a major uproar.
Due to the backlash, the Supreme Court Collegium withdrew its recommendation to appoint her as a permanent judge. Instead, her tenure as an additional judge was extended by one year. Her tenure ended in February 2022, leading to her demotion as a district sessions judge.
Ganediwala’s Petition for Pension
In July 2023, Ganediwala filed a petition challenging a communication dated November 2, 2022, from the High Court’s original side registrar. The communication declared her ineligible for pension and other benefits as a High Court judge. Ganediwala argued that she was entitled to pension benefits as an additional judge, irrespective of whether she had voluntarily retired or superannuated.
Ganediwala stated, “I have not been getting any pension. The entire approach on part of the respondents in denying pension is arbitrary and unsustainable in law.”
Her plea also highlighted her career trajectory. She was appointed as a district judge on October 26, 2007, and later became an additional judge of the Bombay High Court in 2019. She noted that in January 2021, the Supreme Court had initially approved her application for a permanent judge appointment, but later withdrew the recommendation.
Despite working as an additional judge for nearly three years, her pension application was denied by the registry, stating that since she did not retire as a High Court judge, she was ineligible for pension of the same rank.
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Justice Pushpa Ganediwala’s Controversy
Justice Pushpa Ganediwala began her judicial journey in 2007 when she was appointed as a District Judge. Later, on February 8, 2019, she was appointed as an additional judge of the Bombay High Court for a two-year term.
On January 12, 2021, the Supreme Court Collegium recommended her elevation as a permanent judge of the Bombay High Court. However, this recommendation was later withdrawn after certain controversial judgments authored by her surfaced.
Justice Ganediwala had delivered three acquittals under the Protection of Children from Sexual Offences (POCSO) Act within a single week. These judgments attracted significant attention and criticism.
In the first case, on January 14, 2021, she reversed a conviction order in the case of Jageshwar Wasudeo Kawle v. State of Maharashtra. She observed that there was insufficient evidence to support the prosecution’s case for rape.
In the second case, on January 15, 2021, in Libnus v. State of Maharashtra, she ruled 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.”
The third and most controversial judgment was delivered on January 19, 2021, in Satish Ragde v. State of Maharashtra. She held that “the act of pressing the breast of a 12-year-old child without removing her top will not fall within the definition of ‘sexual assault’ under Section 7 of POCSO.” This ruling, popularly referred to as the “skin-to-skin” judgment, led to widespread outrage. The Supreme Court later overturned this judgment.
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These contentious rulings prompted the Collegium to retract its recommendation to confirm Justice Ganediwala as a permanent judge of the Bombay High Court.
Subsequently, on February 21, 2021, the Union Ministry of Law and Justice accepted the Supreme Court Collegium’s revised decision. It decided not to appoint her as a permanent judge and extended her tenure as an additional judge by one more year.
However, on February 10, 2022, Justice Ganediwala resigned from her position. Her resignation followed the Collegium’s decision not to recommend her for a permanent judgeship and the non-extension of her additional judgeship.
Following her resignation, Justice Ganediwala faced another challenge when she was denied pensionary benefits equivalent to those of High Court judges. She approached the High Court, stating that she had not been receiving any pension benefits.
The High Court registrar informed her that she was “not eligible or entitled to pension as a High Court judge or other applicable benefits.”
Additionally, the then Advocate General Ashutosh Kumbhakoni opined that “since Ganediwala had not retired as a High Court judge, she would not be entitled to a pension of the same rank.”
Justice Ganediwala challenged this stance by filing a writ petition through advocate Akshay Naik.
In her plea, she argued, “I am entitled to a pension irrespective of whether I superannuated or took voluntary retirement from the judicial office.”
She highlighted her long service, stating that she had worked as an additional judge of the High Court for nearly three years and as a district judge for over 11 years and three months.
Senior Advocates Sunil Manohar and Nikhil Sakhardande, along with advocates Prahlad Paranjape, Ankit B Rathod, Onkar Bajaj, and Atharva S Manohar, instructed by advocate Anshu Agrawal, represented Justice Ganediwala in the matter.
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