"Sexually Provocative Dress" Remark : Kerala High Court Dismisses Sessions Judge's Plea Challenging Transfer

The Kerala High Court on Thursday dismissed the plea moved by the Principal District and Sessions Judge, Kozhikode, challenging his transfer order to the post of Presiding Officer, Labour Court, Kollam. The transfer was made after the judge made the controversial "sexually provocative dress" remark in the order granting bail to Civic Chandran in a sexual harasssment case.

The bench of Justice Anu Sivaraman observed that the petitioner, who is a member of higher judicial service, cannot be said to be prejudiced in any manner for his posting as Presiding Officer of Labour Court, which is a post born from the cadre of District Judge.

"I fail to see what legal right of the petitioner is infringed by the transfer order and I am of the opinion that the grounds raised in the writ petition do not justify the grant of any plea sought for", Justice Anu Sivaraman read out the operative portion of the order.

When the matter was taken up for hearing on the previous day, the Counsel appearing for the petitioner, Advocate Dinesh Mathew J. Muricken, had submitted before the Court that a judicial officer can be transferred before completing the three-year term in a post only if it is necessary for the administration or under special circumstances. A wrong order passed while discharging judicial duty cannot be a ground for transfer. Further, he submitted that the post of Presiding Officer of a Labour Court is a deputation post and posting the petitioner in a deputation post requires the consent of the petitioner. Since the consent of the petitioner is not obtained, it is contended that the posting of the petitioner as a Presiding Officer, Labour Court, Kollam is illegal.

However, the Court had remarked that the transfer order was an order simpliciter, and there wasn't anything in the order to show that the transfer was made for passing an erroneous order.  Furthermore, the Court also observed that the transfer to the post of Presiding Officer of a Labour Court is not a deputation as it is well within the cadre of the Principle District Judge. 

The Judge, on August 12, had observed that the complaint of sexual harassment is not prima facie maintainable if the woman was wearing a sexually provocative dress. The Judge went on to remark that "the defacto complainant herself is exposing to dresses which are having some sexual, provocative one", and this remark sparked a massive social media outrage, following which the Kerala Government moved to the High Court, challenging the order citing that the reasoning given by the Sessions Court suffered from "illegality, lack of sensitivity, sobriety and perversity".

The controversial order was later stayed by the Kerala High Court in the challenge made by the State Government.

Case Title: S. Krishnakumar v. State of Kerala

Citation: 2022 LiveLaw(Ker) 464

Click Here To Read/Download The Order