‘No punitive mechanism to compel’: Legal experts on delay in transfer of Madras High Court judge to Kerala High Court

The notification dated December 12 issued by the Union ministry of law and justice stated, “The President, after consultation with the Chief Justice of India, is pleased to direct Smt. Justice J. Nisha Banu, Judge, Madras High Court to assume charge of her office in the Kerala High Court on or before 20.12.2025.”

Past, present

Advocate Alay Razvi, managing partner, Accord Juris Razi said there are precedents of such instances.

In 1996, Justice KP Dandapani, transferred from the Kerala High Court to the Gujarat High Court, delayed joining. The Kerala High Court rejected a writ of quo warranto, holding that he legally remained a Kerala High Court judge until he took oath at the transferee court, while urging prompt compliance for constitutional dignity. He eventually resigned.

Quo warranto is a legal writ used by courts to challenge the legitimacy of someone holding a public office, franchise, or public function, essentially asking, “by what right do you hold this position?”.

It is a mechanism to prevent illegal appointments, ensure qualifications, and oust individuals unlawfully occupying public posts, often invoked when there’s suspicion of usurpation or lack of legal entitlement, serving as a check on government power and promoting.

B Shravanth Shanker, Advocate-on-Record, Supreme Court said Justice Sankalchand Himatlal Sheth who was transferred from the Gujarat High Court to the Andhra Pradesh High Court in 1976 and, unlike later instances of outright refusal, complied with the order by assuming charge at the Andhra Pradesh High Court.

He subsequently challenged the transfer by filing a writ petition, arguing that it lacked his consent and that effective consultation with the Chief Justice of India was absent, told advocate Shanker.

“The Supreme Court, by a majority, upheld the President’s power to transfer judges without their consent and without the concurrence of the Chief Justice of India. The matter was ultimately resolved through a settlement, with the government agreeing to transfer him back to Gujarat, acknowledging that there was “no justification” for the original transfer,” said the Supreme Court advocate.

In the contemporary context including the Justice Nisha Banu episode, he said, the institutional response to refusal has largely been confined to formal administrative measures, such as issuing Presidential directives with mandatory deadlines.

“The Constitution does not provide swift internal disciplinary tools to compel compliance. The framework governing a non-compliant High Court judge has often been likened to a high-security vault that opens only through impeachment political and constitutional detonation while the administrative authorities, including the Collegium and the executive, are left to rely on persuasion and formal, non-coercive constitutional processes,” said advocate Shanker.

He added that ordinary service-law mechanisms are deliberately unavailable, reflecting the imperative of preserving judicial insulation and independence, even at the cost of leaving compliance gaps unresolved.

Legal rigamarole

Advocate Tushar Kumar, who practices in the Supreme Court, said when a high court judge declines to comply with a transfer ordered by the President under Article 222 of the Constitution, the situation enters a constitutionally delicate space rather than one of immediate legal rupture.

He further elaborates that the Constitution does not contemplate any coercive or punitive mechanism to compel a judge to join the transferee high court, nor does it prescribe automatic cessation of office upon mere issuance of the transfer order.

Judicial interpretation has recognised that the vacating of office under Article 217(1)(c) is operationally linked to the judge assuming charge at the transferee court,” advocate Kumar said.

“Nonetheless, such refusal is viewed as fundamentally inconsistent with constitutional discipline, judicial decorum, and the institutional ethos of the higher judiciary. While no formal sanction follows as a matter of law, continued non-compliance creates an untenable constitutional position, exerting strong moral and institutional pressure on the judge to either honour the transfer or demit office,” added advocate Kumar.

Further explaining the issue, he said that there have been rare but instructive instances where judges have chosen not to join their transferee courts.

The judiciary has historically refrained from adopting an adversarial or enforcement-oriented approach, recognising the absence of any express constitutional tool to compel obedience beyond issuance of the presidential order, he said.

“Courts have declined to entertain collateral challenges, including proceedings in the nature of quo warranto, on the premise that a transfer does not instantaneously extinguish judicial office,” said the Supreme Court advocate.

Kumar added, “In more contemporary practice, the response of both the judiciary and the executive has remained restrained and dignified, relying on convention and constitutional morality rather than confrontation. Where disagreement has persisted, the matter has resolved itself institutionally, thereby preserving the equilibrium between judicial independence and constitutional governance without precipitating a constitutional crisis.”

Advocate Tushar Agarwal, founder and managing partner, CLAP Juris, Advocates & Solicitors, commenting on the issue told The Indian Express, “In India, a high court judge has no legal right to refuse a transfer once it is validly ordered. But the Constitution also does not provide an automatic punishment mechanism for refusal. The position is therefore a mix of constitutional obligation + practical consequences, rather than instant legal sanctions.”

There is no explicit provision in the Constitution that says that the judge is removed automatically or the transfer becomes invalid, said advocate Agarwal.

“However, refusal has serious consequences. A high court judge who refuses a transfer does not get removed automatically, but risks isolation, loss of work, disciplinary proceedings, and even impeachment for constitutional misconduct,” he added.

Advocate Agarwal stated that there are a few well-documented instances where high court judges did not join the transferred court, but importantly, they did not continue in office while refusing to do so. Instead, they resigned.

There is no known case where a judge openly defied a transfer order and continued functioning indefinitely, he said.

“Yes, judges have refused to join after transfer—but only by resigning. There is no example of successful defiance while remaining in office. The constitutional design ensures that open rebellion never crystallises into a precedent, preserving both authority and dignity of the judiciary,” he said.