Tanisha Rana
Published on: September 16, 2022 at 22:29 IST
The decision transferring Kozhikode Principal District and Sessions Judge S Krishnakumar to a Labour Court in Kollam was stayed by the Kerala High Court.
His move followed intense backlash after a ruling he made in early August holding that a sexual harassment claim would not be prima facie valid if the victim was dressed in a “sexually suggestive clothing.”
On appeal from a single judge’s ruling sustaining his transfer, Justices AK Jayasankaran Nambiar and Mohammed Nias CP of a division bench gave the order.
Krishnakumar argued in his petition to the High Court that the transfer order was unconstitutional, arbitrary, and in violation of Article 14 of the Indian Constitution.
Additionally, it was stated that a judge’s wrongdoing while performing his duties cannot serve as justification for the judge’s relocation.
On September 1, a single judge rejected the petition he had submitted.
“The petitioner, who is a member of the Higher Judicial Service cannot be said to be prejudiced in any manner by his posting as Presiding Officer of the Labour Court, which is a post borne on the cadre of District Judge and which is admittedly being filled up by the State Government by appointment of District Judges on the recommendation of the High Court.”
“Being a responsible member of the District Judiciary, the petitioner is expected to render his services wherever he is posted. I fail to see what legal right of the petitioner is infringed by Exhibit P2 order. I am of the opinion that the grounds raised in the writ petition do not justify the grant of any of the reliefs as sought for,” the order stated.
When Krishnakumar was appointed Presiding Officer of the Labour Court in the Kollam district, he was working as Additional District and Sessions Judge in Kozhikode.
On August 23, a notification to that effect appeared on the Kerala High Court website. However, his transfer won’t take place unless he receives the relevant government order.
According to the notification, three other judges have also been transferred, and the transfer was a regular aspect of the posting and transfer of judicial personnel.
But it did so at a time when the judge was being scrutinised for a decision he made in a sexual harassment case while releasing activist Civic Chandran on bail.
According to the decision, there must be some unwanted sexual approaches to constitute an offence under Section 354A of the Indian Penal Code, but in the present instance, the complainant was seen “exposing herself in suggestive clothing” in the images.
“Physical contact and approaches including uninvited and explicit sexual overtures must occur in order to attract this Section. A desire or request for sexual favours must exist. There must be comments with a sexual undertone.”
“The images submitted with the bail application by the defendant show the de facto complainant wearing outfits with certain sexually suggestive elements (sic). Thus, Section 354A would not constitute a prima facie case against the accused,” according to the order.
Chandran cannot be arrested until the High Court’s hearing is through, but the court recently delayed the bail order.