The Supreme Court collegium has reportedly withdrawn its recommendation to make an additional judge of the Bombay high court permanent following a series of back-to-back controversial judgments she recently delivered, of which two have attracted national attention, and condemnation. In one order, the judge decided that a person accused of groping a 12-year-old girl should not be given the maximum punishment under the Protection of Children from Sexual Offences Act (POCSO Act), 2012, because there was no skin-to-skin touch. In the second, she concluded that a man holding the hands of a minor girl and opening the zip of his pants cannot be convicted for ‘sexual assault' under POCSO Act but for “sexual harassment” under Indian Penal Code. The Supreme Court stayed the first order the very next day but its collegium chose to send the recommendation of the collegium to make her permanent. It has gone back on that decision now.
The two judgments triggered widespread outrage among the general public as well as the legal circles. And there are many sound reasons, too. The judge refused to understand the legislative intention of POCSO Act, a special Act brought to protect the interests of children, one of the most vulnerable sections of society. The apex court is right in deciding that the judge needed better sensitisation on the subject.
This is not the first time that a judgment has assaulted the sense of justice of fair-minded people. A Supreme Court judgment referred to satisfying the “collective conscience of society” while confirming a death penalty. This not the first time a well-thought out piece of legislation has been turned upside down; the National Judicial Appointments Commission Act, 2014, which sought to replace the self-made collegium system of appointing judges in the higher judiciary, is a prime example. It is time the judiciary started taking steps to correct itself, and this could well be a major step towards that direction.