Provocative dress order: Kerala High Court dismisses plea by judge challenging his transfer to Labour Court

The Kerala High Court on Thursday rejected a plea against transfer filed by an Additional District and Sessions Judge who had delivered a controversial order holding that sexual harassment case would not prima facie stand if the victim was wearing a “sexually provocative dress” [S Krishnakumar v State of Kerala]..Single-judge Justice Anu Sivaraman, who heard the matter, dismissed the petition filed by S Krishnakumar who challenged his transfer to Labour Court."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..Krishnakumar was serving as Additional District and Sessions Judge at Kozhikode when he was transferred as Presiding Officer of Labour Court in Kollam district.Notice to that effect was published on the website of the Kerala High Court last week.As per the notice, the transfer was part of the routine transfer and posting of judicial officers and three other judges have also been transferred.However, it came at a time when the judge had come under scanner for an order passed by him in a sexual harassment case while granting bail to activist Civic Chandran.In the order, he had held that sexual harassment case would not prima facie stand if the victim was wearing a “sexually provocative dress”.The judge had stated that to attract the offence under Section 354A of the Indian Penal, there must be some unwelcome sexual advances but in the instant case, the photographs of the complainant showed her "exposing herself in provocative dresses".“In order to attract this Section, there must be a physical contact and advances involving unwelcome and explicit sexual overtures. There must be a demand or request for sexual favours. There must be sexually colored remarks. The photographs produced along with the bail application by the accused would reveal that defacto complainant herself is exposing to dresses which are having some sexual provocative one (sic). So Section 354A will not prima facie stand against the accused," the order had said.The High Court recently stayed the bail order but ordered that Chandran not be arrested until completion of the hearing before it.In his plea before the High Court, Krishnakumar contended that the transfer order was illegal, arbitrary and violative of Article 14 of the Constitution of India.It was also argued that a wrong order passed by a judge while discharging his duty cannot be a ground to transfer the judge..However, during the hearing of the case on August 30, the High Court had asked the petitioner-judge whether there is any material to prove that the transfer was on account of the said order."What is there to show that it is on account of that (the controversial provocative dress order) that the transfer was effected? It is a transfer simplicitor," Justice Sivaraman had remarked.She had also said that a Labour Court judge is well within the cadre of District Judges..The petitioner was represented by advocates Dinesh Mathew J Muriken, Vinod S Pillai, Nayana Varghese and Ahammad Sachin K. Government Pleader Sunil Kuriakose appeared for the State..[Read Order]