4 Shocking POCSO Orders By One Judge. But Is The Problem Bigger?

Justice Pushpa Ganediwala’s orders highlight need for specialised training of judges & flaws with approach to laws.

Justice Pushpa Ganediwala, a judge of the Nagpur bench of the Bombay High Court, has found herself in the news for all the wrong reasons.

It began with the reporting of a judgment by her in which she held that groping a minor girl’s breasts without ‘skin-to-skin’ contact, would not amount to sexual assault under the Protection of Children from Sexual Offences Act (POCSO Act).

The interpretation offered by her was swiftly condemned for having no basis in the wording of the law, and indeed going against the entire spirit of a law meant to address the seriousness of child sexual assault. When the judgment was brought to the Supreme Court’s notice a day later by the Attorney General, Chief Justice of India SA Bobde stayed the judgment, which means it cannot be invoked as a precedent.

Unfortunately, this was not the only problematic precedent Justice Ganediwala had laid down when it comes to POCSO Act offences.

We soon learnt that a few days before the ‘skin-to-skin’ judgment, she had acquitted a man of sexual assault under the POCSO Act who had opened the zip of his pants while holding the hand of a girl below the age of 12, whom he had asked to come to bed with him.

In another judgment of hers, she acquitted a man of rape against a minor girl, holding that the prosecutrix’s testimony wasn’t of sufficient quality to be the sole basis to convict him (as there was no other relevant evidence of sexual intercourse).

While this aspect of the judgment may have been arguable on the facts of the case, Justice Ganediwala noted in her order, for no discernible reason, that the girl, being 17 years 9 months old at the time of the alleged offence, was only 3 months away from attaining majority.

This would not have been relevant if sexual intercourse or any sort of sexual contact had been proven, so there was no reason to highlight this.

If this weren’t enough, a fourth judgment has also come to light now, in which she acquitted a 26-year-old man of the charges of sexual assault (under the POCSO Act) and rape under the IPC, of a girl alleged to be 15 years of age.

The judge acquitted the man as, even though he had admitted to having sexual intercourse with the girl, it had not been proved that the girl was under 18 years of age, and that there was insufficient evidence to prove there was no consent.

To arrive at this finding on consent, the judge held that it seems “highly impossible” that the man had been able to gag the survivor’s mouth, remove their clothes and perform a non-consensual sexual act without there being any “scuffle”. Despite the IPC itself clarifying that lack of physical resistance should not be regarded as proof of consent, the judge writes:

“Had it been a case of forcible intercourse, there would have been scuffle between the parties. In medical report, no injuries of scuffle could be seen.”

Again, while taking all the evidence into account, there may have been grounds to say that the sexual intercourse was not forced, the fact that the judge didn’t take further steps to ascertain the age of the girl is extremely concerning, as if the girl was a minor, this would still amount to statutory rape.

The prosecution evidence may not have been up to the mark here, as Justice Ganediwala had held, with the birth certificate in the wrong format and not proved to be from official records. However, the judge had the power to call for relevant evidence including appropriate birth records or even a bone ossification test to ascertain the girl’s age.

At the very least, having noted that even the trial court had not performed this exercise, she could have sent the case back to the trial court to conduct an inquiry and call for proper evidence under Section 165 of the Indian Evidence Act.

Unsurprisingly, The Times of India reports that the Supreme Court has withdrawn its recommendation to appoint Justice Ganediwala as a permanent judge of the Bombay High Court (she is currently an additional judge, ie, on a limited basis).

Better Judicial Training Required?

Extensive legal expertise is not required to see everything wrong with Justice Ganediwala’s orders. The issues regarding her ‘skin-to-skin’ interpretation, her reference to a ‘scuffle’ to show lack of consent, and her failure to ascertain the age of a survivor where the age was in dispute, would be obvious to any law student.

So why is it that a judge – not just of any court, but an additional judge of the high court – was not mindful of them?

Former Supreme Court judge, Justice Madan B Lokur, thinks that these cases show a need for “better training and gender sensitisation” of judges, as recently suggested by Attorney General of India KK Venugopal.

However, he points out that Justice Ganediwala was Joint Director of the Maharashtra Judicial Academy, which trains district and other lower court judges before they begin their work. This raises serious questions about the kind of judicial education being provided to judges, he says.

Coming to the kind of training given to high court judges like Justice Ganediwala – who are supposed to ensure any errors by the lower courts are rectified on repeal – he explains:

“For newly appointed high court judges, there is a programme that is conducted by the National Judicial Academy. But they don’t have specific programmes on sensitisation for rights of children, rights of women, gender issues, or any of that. They may have some lectures on these issues, but the whole programme is quite generalised.”

This leaves one with the uncomfortable thought that the four problematic judgments by Justice Ganediwala may just be scratching the surface.

Orders passed by her are being searched out, but what about orders by other judges who also received no detailed training on the POCSO Act? What about other judges who haven’t been trained to leave old-fashioned ideas about consent at the door when hearing rape cases?

“These kind of cases give an indication that there have to be specific programmes for newly appointed high court judges targeted at specific issues,” Justice Lokur says, pointing out that these should include rights of children, women, minorities, scheduled tribes and scheduled castes.

Another area where such specialised training looks necessary is the grant of bail and protection of personal liberty. Referencing the recent order of the Madhya Pradesh High Court, which controversially denied bail to comedian Munawar Faruqui even though, as Justice Lokur puts it, “even a first-year law student would have been able to understand how to properly decide that bail application.”

The fact that the judge who rejected Faruqui’s bail application in this controversial manner – Justice Rohit Arya – was the same judge who had made it a condition of bail for a man accused of molestation to tie a rakhi on his accuser, only underscores the need for better training and sensitisation.

Need to Rethink Approach to Legislation?

In addition to all the other problems in them, the four judgments by Justice Ganediwala include another common thread, child rights activist Enakshi Ganguly rightly points out.

They all include some sort of comments about the stringent punishment for offences under the POCSO Act, and why this requires the court to be extra careful and that the evidence needs to be of even higher quality, and why lower punishments under the IPC may be more suitable given the nature of the offence.

This is a point long raised by activists and researchers in the child rights and gender rights space, who have argued against merely making punishments for sexual offences more strict, as many states have sought to do, with some like Madhya Pradesh even making offences against children under the age of 12 punishable with death.

While this may seem like justice, Ganguly says this is indicative of a lack of thought when it comes to dealing with the problem of sexual violence.

“Highly punitive laws with stringent punishments lead to acquittals. This is a known fact and yet society demands stringent laws and government gives in and makes such laws. In the end it is justice that suffers.”

Enakshi Ganguly, child rights activist

Justice Lokur notes that concerns over the stringency of punishments under the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) had led to an increase in acquittals in those cases as well, as judges thought twice about convicting someone knowing they could be stuck in jail for many years.

Strictly speaking, one could argue that judges should not be concerned with such a consideration, but given they are dealing with people’s lives and liberty, this problem cannot just be ignored.

At the very least, Justice Lokur believes, this drives home the need for “judicial impact assessments” when it comes to new laws (or amendments to old laws), something which the Supreme Court had directed to be done all the way back in 2005.

“These kind of issues have been arising for a while. There has to be some discussion amongst the judiciary, amongst NGOs, amongst Parliamentarians, as to whether we are doing the right things with new laws. It can’t be that you just say we’ve done it and ignore what happens after.”

Justice Madan B Lokur, retired Supreme Court judge

He notes that in the report relied on by the Supreme Court 15 years ago, it had talked about two kinds of assessment which needed to be undertaken when implementing a change in the law:

1. Impact of the law on the justice delivery system. Will this increase the workload of the courts, and how do you address that? Will you need to hire more judges? How will you train them? Will you need more courtrooms?
2. Impact on the judges and prosecution. Will the changes impact which cases are brought to trial? Will the judges’ considerations get affected?

None of this should be taken to suggest that amendments to deal with serious issues like child sexual abuse should not be made to our laws. However, there will be a need to see how many other Pushpa Ganediwalas are out there, and how their judgments – which are meant to uphold justice – are being affected, if only to figure out how to train them better and prevent them from failing in their duties.