WHAT HAPPENS when a High Court judge does not join the transferee court despite the President of India’s order, who is the appointing authority of the judges of the High Courts and the Supreme Court?
Justice J. Nisha Banu of the Madras High Court, who was transferred by the order of the President to the Kerala High Court on October 14, 2025, is yet to assume charge of her office there.
In a not so common move, the President of India, in consultation with the Chief Justice of India, has issued a fresh order asking Justice Banu to join the Kerala High Court by December 20, 2025.
As per a report in The Hindu, Justice Banu, immediately after her transfer, went on leave and applied to the collegium to reconsider her transfer.
The issue was also raised in Parliament when a Congress Member of Parliament, Km. Sudha R, asked the Union Law Ministry whether Justice Banu continued to be part of the Madras High Court collegium and whether she had signed any list of candidates recommended for appointment as judges. Justice Banu has been a part of the Madras High Court collegium. The Law Minister did not answer the queries clearly, except to state that she was transferred on October 14, 2025.
Article 222(1) of the Constitution deals with the transfer of High Court judges. It says that the President may transfer a judge from one High Court to any other High Court.
As per the Second Judges’ Case, the opinion of the Chief Justice of India, in consultation with four senior judges of the Supreme Court, is determinative when it comes to the transfer of High Court judges.
The collegium had recommended Justice Banu’s transfer on August 25, 2025, which the Union government acted upon in October.
A similar case in 1996 - What the Kerala HC’s past ruling said
Some time back in 1996, the Kerala High Court was faced with a similar situation. Senior Advocate K. P. Dandapani, who went on to become the Advocate General of Kerala, was appointed as a judge of the Kerala High Court on April 11, 1996. He was later transferred to the Gujarat High Court and was asked to join by May 9, 1996. Later, the time was extended for him to join by June 30, 1996, and it was further extended till July 22, 1996.
A petition was filed in the Kerala High Court contending that, by virtue of the transfer order, Dandapani ceased to be a judge of the Kerala High Court and thus a writ of quo warranto be issued calling upon him to show cause under what authority he had been discharging functions as an Additional Judge of the High Court of Kerala. One question that arose before the High Court was at what stage the judge ceased to be a judge of the High Court from where he was being transferred.
The High Court referred to Article 217(1)(c) of the Constitution. It states:
“‘The office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India.’”
The High Court observed that Article 217(1)(c) only says that the judge who is transferred shall vacate his office. The fact that the transferred judge was given sufficient time to assume office in the transferee High Court is indicative of the fact that the transfer order does not abruptly terminate the appointment as a judge of the transferor High Court.
On the facts of the case, the High Court noted that Dandapani did not assume charge on June 30, 1996. On July 4, 1996, another order was issued by the President of India, in consultation with the Chief Justice of India, extending the time to assume office till July 22, 1996.
The Bench thus noted that if the appointment of Dandapani had come to an end, it did not think that the President of India, in consultation with the Chief Justice of India, would have issued an order on July 4, 1996, granting him further time to assume office.
The High Court ruled: “If it is assumed that the Judge immediately ceases to be a Judge of the transferor High Court on his being transferred by the President of India under Article 222 of the Constitution, the cancellation of the said order will lead to a situation where the Judge is no longer a Judge of the transferor High Court and also of the transferee High Court. Till he enters upon his office at the transferee High Court, he cannot be a Judge of that Court. We do not think that this is a correct interpretation of Article 217(1)(c) of the Constitution.”
The phrase ‘Enters upon his office’ means subscribing to the oath of office.
The High Court rejected the petition seeking issuance of quo warranto. It opined that since Dandapani was appointed as an Additional Judge of the High Court of Kerala by the President of India in consultation with the Chief Justice of India, the warrant of appointment still held good, and that he had been given time to assume office till July 22, 1996. Thus he continued to be a judge of that Court for all practical purposes.
The High Court, however, noted that considering the dignity and decorum of the high constitutional office, it was just and fair that a judge, on being transferred, shall vacate his office at the earliest.
“If he continues to discharge functions as a Judge in the transferor High Court, that may not be consistent with the constitutional spirit enshrined in Article 217(1)(c) of the Constitution,” the High Court held.
Thus, what is clear is that a mere transfer order does not automatically result in cessation of office at the High Court from where a judge is being transferred.
Notably, Justice Dandapani resigned from his post following the judgement of the High Court.
What will happen if Justice Banu refuses to join the office by the deadline set by the President?
No answer is available in black and white. The Constitution of India does not envisage disciplinary proceedings against judges, unlike cases where an employer–employee relationship exists. A judge can only be removed by way of impeachment, which is a political process. There is no provision for suspension of a judge either.
As rightly observed by the Kerala High Court, the continuation of work at the transferor High Court despite transfer order may not be in the spirit of Article 217(1)(c) of the Constitution.
A judge, once transferred, should join the transferee High Court. If they have a grievance with the transfer, they should either challenge it or seek reconsideration by the collegium, but in that process it cannot be the case that the judge continues to retain their office in the High Court from where they are being transferred.