When an HC judge defies transfer

Justice J Nisha Banu of the Madras High Court, who was transferred to the Kerala High Court by a presidential order dated October 14, 2025, is yet to assume charge at her new posting.

- BHAVINI MISHRA

What lends the episode an unusual edge is that the President of India has since issued a reminder directing compliance, a rare intervention in the constitutional handling of judicial transfers.

The development has revived a fundamental question: What happens when a High Court judge does not comply with a transfer order issued by the President of India?

Under Article 222(1) of the Constitution, the President, in consultation with the chief Justice of India (CJI), may transfer a High Court judge from one court to another.

“A transfer of a High Court judge is a constitutional exercise carried out by the President after consultation with the CJI. The judge’s consent is not a constitutional requirement,” said Rishabh Gandhi, founder of Rishabh Gandhi and Advocates.

However, the legal effect of such a transfer is often misunderstood. Gandhi, a former judge, noted that the office of the judge in the parent High Court does not automatically fall vacant upon the issuance of the transfer order. “Vacation of office under Article 217(1)(c) is operationally linked to the judge entering upon office at the transferee High Court, which means assuming charge there,” he said. Until that happens, the judge technically continues to hold office, but cannot function judicially.

This produces a constitutional oddity: The transfer order is binding, yet there is no clear legal mechanism to enforce it. The Constitution provides no scope for suspension, stoppage of salary, or executive action against a judge for noncompliance.

“The only constitutional mechanism for removal remains impeachment under Articles 124(4) and 218, which is plainly disproportionate to a dispute over transfer,” Gandhi said.