What happens when a High Court judge refuses to be transferred despite the President’s order?

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.’”