The Kerala High Court held on Wednesday that failure to follow the Supreme Court's guidelines is not misconduct by a judicial officer unless it is proven to be wilful and deliberate.

A division bench of Justices AK Jayasankaran Nambiar and Mohammed Nias CP observed that "Non-adherence to the guidelines issued by the Supreme Court, except when established to be wilful and deliberate, cannot be seen as misconduct on the part of a judicial officer. When the non-adherence to the guidelines issued by the higher court, is on account of the ignorance or no 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."

It further said that the observations in question were of a kind that was specifically denounced and deprecated by the Supreme Court in Aparna Bhat & Ors. v. State of Madhya Pradesh & Anr. and elaborated that "If the observations do not have any nexus with the issue that is being considered by the court, the judge’s observations, if derogatory in nature, cannot claim any immunity from either public criticism or legal action. Such immunity, on the other hand, will ordinarily be available to those observations that are made in connection with the issue being considered by the court, whether or not they are in conformity with the popular view held in society."

In this case, the court noted that the high court had already struck down the appellant's contentious observations.

If the High Court was still of the opinion that disciplinary action was warranted, the Court said, it should have first sought an explanation from the appellant and then established the misconduct in a disciplinary inquiry instituted for that purpose. The High Court, however, never took such action against the appellant, according to the bench.

It was also stated in the counter-affidavit filed by the High Court Registrar General that the order of transfer was not punitive but in the public interest and exigencies of the service. As a result, the court determined that the transfer was unjust and punitive.

Case title: S Krishnakumar v State of Kerala