Kerala judge who gave ‘provocative dress’ order moves HC over transfer

The Kerala High Court on Tuesday (August 30) reserved its order after hearing a petition filed by the Principal District and Sessions Judge, Kozhikode, challenging his transfer after passing the ‘sexually provocative dress’ order in a sexual harassment case.

A single bench hearing the case observed that there was nothing illegal about the transfer while posting the next hearing to another date.

The petitioner, S Krishnakumar, recently hit the headlines after he granted bail to 74-year-old writer-activist Civic Chandran in a sexual harassment case by citing the victim’s “provocative dressing” as the ground for the release.

His order drew sharp criticism from several sections of society with complaints being registered with the Chief Justice and the Registrar of the Kerala High Court to take appropriate action against the judge.

Also read: Kerala judge who made controversial observations in sexual harassment case transferred

On August 23, a week after he gave the order, Krishnakumar was transferred to the Labour Court in Kollam as a Presiding Officer – a measure that was widely interpreted as a clear message to the subordinate judiciary though the order did not cite any reason for the transfer.

While hearing Krishnakumar’s petition on Tuesday, Justice Anu Sivaraman, however, said that the transfer was not a deputation, as alleged by the petitioner, and was within the cadre of the Principal District Judge.

Transfer illegal, flouts Article 14, alleges judge

In the writ petition in which the Kerala High Court, its registrar and Kerala government are respondents, Krishnakumar argued that his transfer by the high court was illegal, arbitrary and in violation of Article 14 of the Constitution.

The petitioner said that according to the existing transfer norms, a judicial officer who has not completed three years in the current station cannot be transferred unless it is necessary in the interest of the administration of justice or some special circumstances necessitating the transfer. The petitioner argued that a “wrong order” cannot be a reason to transfer a judicial officer.

Krishnakumar said he took charge as the Principal and Sessions judge at Kozhikkode only recently – on June 6 this year and had not completed three years in the court before he was transferred. He is due to retire on May 31, 2023.

In his petition, the judge also challenged the high court’s authority to appoint him to the Labour Court in Kollam, arguing that state government is the legitimate appointing authority in this case. According to the Industrial Dispute Act of 1947, the Presiding Officer of a Labour Court is appointed by the government, he said in the petition.

“The presiding officer of a Labour Court is a deputation post to which appointment can be done only with the consent of the Judicial Officer who is being appointed,” Krishnakumar said. In his case no consent has been sought before transferring him to the labour court, he added.

He also cited health reasons for moving the writ petition against his transfer. Krishnakumar said he is suffering from diabetics and liver disease for which he is undergoing treatment at Aster MIMS hospital at Kozhikkode. Hence a sudden shift from the location would have an adverse impact on his health.

The controversial order

Krishnakumar had recently granted bail to Civic Chandran, 74, in a case in which the latter was accused of sexual harassment by a 30-year-old tribal woman.

While passing the bail order on August 2, the judge had contended that Section 354 (assault or criminal force to woman with intent to outrage her modesty) of the Indian Penal Code cannot be invoked against the accused because the survivor was wearing sexually provocative dress. The judge had made the observation based on the photographs of the girl produced by the accused.

Also read: Victim’s dress ‘provocative’, said Kerala judge; yet again, a court lets women down

The judge also expressed doubt over the genuineness of the complaint because of the delay in filing the complaint. He said the accused was a man of good reputation as one of his daughters is a deputy collector and the other one an assistant professor.

The bail order invoked widespread protests. The state government also moved the Kerala High Court, urging it to set aside the sessions court orders, while commenting that the judgement of the lower court “suffers from illegality and manifest errors.”