Kerala HC stays transfer of judge blaming sexual harassment victim for wearing ‘sexually provocative dress’
Judge S Krishnakumar, Principal District and Sessions Court Kozhikode, Kerala who was transferred to labour court in Kollam, after he blamed a sexual harassment victim for wearing “sexually provocative dress”, has got a reprieve from Kerala High Court. The High Court has quashed his transfer.
On an anticipatory bail application by writer Civic Chandran, who has been charged with sexual assault in two cases, the Judge Krishnakumar had said in his order that a sexual harassment case would not prima facie stand as the victim was wearing a sexually provocative dress.
The judge had made comments in two cases, which have not gone well with the members of the Bar and many people at large. While granting Chandran bail in the first case, the judge had observed that offences under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act would not prima facie stand against the accused as it “is highly unbelievable that he will touch the body of the victim fully knowing that she is member of the Scheduled Caste”.
In the second instance, the court had observed that the offence of sexual harassment would not stand when the woman is wearing “sexually provocative dresses”.
“In order to attract Section 354 A (sexual harassment), there must be physical contact and advances involving unwelcome and explicit sexual overtures. There must be a demand or request for sexual favours. There must be a sexually coloured remark. The photographs produced with the anticipatory bail application by the accused reveal that the complainant herself is exposing to dresses which are sexually provocative. Section 354 A will not prima facie stand against the accused,” the Judge Krishnakumar had said in his order.
In the backdrop of the two orders, Kerala High Court transferred Judge Krishnakumar from Kozhikode to Kollam labour court as presiding officer and replaced him with Judge S Muralikrishna, of Manjeri District Court.
Judge Krishnakumar challenged his transfer order by filing a plea in Kerala High Court. The High Court refused to “interfere” with the transfer order. Following an appeal by the sexual harassment victim, as well as the state government, the High Court on October 13, expunged the observations of Judge Krishnakumar in the two cases.
After the High Court refused to “interfere” with his transfer, Judge Krishnakumar challenged the order on the grounds that transfer norms are only guidelines and that it would not confer any right on the transferred employee. He said his transfer was not in the interest of the administration of justice. It was further argued on his behalf that the punitive action would hit the morale of judicial officers and the fear of punitive action would deter them from taking free and fair decisions on cases which come up for their consideration.
Hearing his appeal, a Division Bench of the High Court said that if the judge failed to follow the guidelines issued by the Supreme Court regarding observations by judges (Aparna Bhat and others vs state of Madhya Pradesh and another, 2021), he cannot be taken to task for such judicial action, but is to be corrected by the higher courts in the appeal stage.