Sexual harassment: Kerala High Court sets aside transfer of Judge who remarked on victim’s “provocative dress”

The transfer can have the deleterious effect of stifling the thought process of judicial officers, the High Court has noted.

ON Wednesday, in the case of S. Krishnakumar versus the State of Kerala & Ors., the division bench of Kerala High Court, comprising A.K. Jayasankaran Nambiar and Mohammed Nias C.P., set aside the transfer of a Sessions Judge in Kozhikode, Kerala, who granted anticipatory bail to a Kerala writer accused of sexual harassment because the victim wore “provocative dress”.

On August 12, the appellant, S.Krishna Kumar, granted anticipatory bail to the 74-year-old writer and social activist, Civic Chandran, pertaining to a complaint that alleged sexual assault under Sections 354A(2), 341 and 354 of the Indian Penal Code. In its analysis, the appellant focussed on the photographs produced by the accused, published by the complainant on social media, and observed: “…the defacto complainant herself is exposing to dresses which are having some sexual provocative one. So Section 354A will not prima facie stand against the accused”.

Also read: Kerala writer, accused of sexual harassment, gets relief again, because his victim wore provocative dress

On October 12, Kerala High Court expunged the controversial remarks made by the appellant and held that the sexually provocative dressing of a victim cannot be construed as a legal ground to absolve an accused from the charge of insulting the modesty of a woman.

Also read: Kerala High Court expunges remarks by Sessions Court against Kerala writer accused of sexual harassment

In the present case, the appellant, a Principal District and Sessions Judge at Kozhikode, has challenged the judgment of a single judge dated September 1, 2022, wherein the transfer of the appellant from the post of Principal District and Sessions Judge at Kozhikode to the post of Presiding Officer, Labour Court, Kollam was upheld.

Single judge, Justice Anu Sivaraman observed in her judgment, that the appellant could not be considered to have been prejudiced on account of transfer since the post of Presiding Officer of the Labour Court is a post borne on the cadre of District and Sessions Judge in the State of Kerala. Justice Sivaraman further held that the post of Presiding Officer of the Labour Court is habitually filled up by transfer from the Kerala Higher Judicial Service, requiring only the order of the Government.

In the appeal before the division bench, the judgment noted that according to the appellant, the transfer is contrary to clauses 3 and 4 of extant transfer norms which provide that except in case of exigencies, a judicial officer would not be transferred unless he completes three years of service. The appellant submitted that the transfer was punitive in nature, issued in response to the widespread public criticism of observations made by the appellant in the concerned bail order, which was considered derogatory in general to women, and the victim in particular.

The judgment authored by Justice Nambiar highlights the counter affidavit filed by the High Court on its administrative side, which points out that the transfer was necessary in view of the “exigencies of service”, wherein certain bail orders passed by the appellant portrayed the judiciary in poor light, and had the propensity to erode public confidence in the judiciary.

Senior counsel V.V. Sidharthan, on behalf of the appellant, argued that the circumstances in which the transfer was passed indicate that it was punitive in nature. Sidharthan submitted that such a punitive transfer was not preceded by disciplinary proceedings against the appellant, and hence “legally unsustainable”.

Action should not be taken against judicial officers only because wrong orders are passed by them…”, Sidharthan emphasised. Further, Sidharthan contended that the posting as Presiding Officer of Labour Court was a deputation that required the consent of the appellant.

On behalf of the Registrar of the High Court, counsel Elvin Peter refuted the ‘deputation’ claim of the appellant. He submitted that while deputation arises on transfer to a post of a different service, the appellant in the present case was transferred to another post in the same service.

Notably, Peter highlighted the judgment of the Supreme Court in the case of Aparna Bhat & Ors. versus State of Madhya Pradesh and Anr. (2021), which directed that the bail order, especially in cases of sexual violence, should not contain any references to the dress, behaviour or past conduct or morals of the prosecutrix. “Bail conditions must be free from stereotypical or patriarchal notions on women and their place in society”, the judgment said.

Referring to the observations of the appellant in the concerned bail order, the High Court opined that the observations were “derogatory to women” and “wholly uncalled for”. The court noted that as a Principal District Judge, the appellant should have taken note of the guidelines of the Supreme Court in the Aparna Bhat case.

The court, however, observed that, except when wilful and deliberate, non-adherence to the guidelines issued by the Supreme Court cannot amount to misconduct on the part of the judicial officer. According to the division bench, such non-adherence due to ignorance and non-comprehension of judicial officers should be viewed as a ‘mistake’ that can be corrected by the higher courts. “Holding otherwise could have the deleterious effect of stifling the thought process of judicial officers…”, the Court remarked.

The Court opined that the High Court on its administrative side should have called for an explanation from the appellant and established the misconduct in a disciplinary enquiry, before imposing an appropriate punishment. Further, the court found the transfer order to be “prejudicial and stigmatic” as the appellant was forced to work in a post that is not perceived to be of the same status as that of the Principal District & Sessions Judge.

Setting aside the transfer order as legally unsustainable, the bench took note that the transfer would be unfairly prejudicial on account of the fact that the appellant will retire in less than a year and is presently undergoing treatment for various ailments.

The Leaflet