A division bench comprising Justice AK Jayasankaran Nambiar and Justice Mohammed Nias CP considered an appeal filed by Krishnakumar. Granting anticipatory bail to writer Civic Chandran in a sexual assault case, the judge had said in the order that a sexual harassment case would not prima facie stand as the victim was wearing a sexually provocative dress. A single bench had, on September 1, declined to interfere with the transfer order. The finding and observation by the lower court were expunged by the high court on October 13 after considering appeals filed by the state government and the survivor.
The division bench said if somebody is aggrieved by the order or observations made by the judge, the only remedy is to file an appeal. Even 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. If it is not the legitimate exercise of the judicial function, it is to be corrected through disciplinary action initiated by the high court on the administrative side, the court said.
“When the non-adherence to the guidelines issued by the higher court is on account of the ignorance or non-comprehension of the judicial officer, it ought to be viewed as a mistake occasioned by the officer in the discharge of his judicial function, and one that can be corrected by the higher courts in the judicial hierarchy. Holding otherwise could have the deleterious effect of stifling the thought process of judicial officers who have to be accorded sufficient intellectual freedom if they are to function effectively under our legal system,” the judgment stated.
After noting that the derogatory observations were expunged by the high court, the division bench said if the high court, on its administrative side, was of the view that the observations warranted disciplinary action, it should have sought for an explanation first and then established the misconduct in a disciplinary enquiry. Only then can a finding of misconduct can be arrived at and a punishment can be imposed upon the judicial officer, the court held.