What happens if a High Court judge does not comply with a 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. 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 non-compliance.

 

“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. The repercussions, he added, are institutional rather than punitive — collegium engagement, reputational pressure and renewed presidential directions.

 

“Refusal does not invite immediate legal penalty; it invites constitutional unease,” he said.

 

No penalty, but consequences may follow

 

Tushar Agarwal, founder and managing partner at C.L.A.P. Juris, echoed that view, noting that the Constitution does not prescribe a simple or express penalty for a judge who fails to comply with a transfer order. “The consequences flow indirectly from Articles 217 and 222, established practice, and judicial discipline,” he said.

 

Once issued, a transfer order is valid and binding.

 

“Refusal alone does not automatically qualify as misbehaviour, but continued defiance could contribute to a case of misbehaviour, depending on circumstances,” Agarwal said.

 

A judge who does not join the transferee court cannot continue judicial work in the parent High Court, and their salary and institutional standing are effectively jeopardised, he added.

 

Constitutional-administrative deadlock

 

Monika Tanna, partner at Singhania & Co, said the relationship between a judge and the State is not akin to that of employer and employee. “There is no provision for suspension or departmental action against judges,” she said. Impeachment remains the only formal remedy, a political and extraordinary measure not intended to address routine administrative defiance.

 

B. Shravanth Shanker, an advocate-on-record in the Supreme Court, described the situation as a “serious constitutional and administrative deadlock”. A transfer under Article 222(1), he said, “is treated as an exigency of service and requires no consent, and once issued, it carries binding constitutional force.”

 

“Non-compliance directly challenges both executive authority acting under the Constitution and institutional decision-making of the judiciary through the Collegium system,” Shanker said.

 

Judicial precedent has, however, adopted a pragmatic approach to avoid a constitutional vacuum. Courts have held that a judge continues in office until assumption of charge at the new court, but cannot perform judicial functions at the old one. The absence of a disciplinary mechanism means such situations are resolved through persuasion rather than enforcement.

 

Precedents of quiet resolution

 

Instances of judges resisting transfers are rare, but not without precedent. In 1996, Justice K P Dandapani of the Kerala High Court was transferred to the Gujarat High Court but did not join. In a petition challenging his continuation, the Kerala High Court refrained from declaring a vacancy, but held that prolonged continuation was inconsistent with constitutional propriety. Justice Dandapani ultimately resigned.

 

More recently, Justice V K Tahilramani resigned in 2019 after being transferred from the Madras High Court to Meghalaya, a move that drew widespread criticism from the Bar, even as the collegium stood by its decision.

 

According to Agarwal, the present case involving Justice Nisha Banu is unusual because of “the extended non-joining after notification, invocation of Article 217(1)(c), and the President explicitly reminding compliance”. 

 

He said it has brought “an unsettled constitutional grey area into sharp focus”.

 

Patience, not punishment

 

Experts broadly agree that the Constitution grants authority but withholds coercive tools in such situations. “Judicial transfers are enforced less by force than by convention,” Gandhi said. “The system relies on constitutional convention and self-discipline, not sanctions. When a judge resists a transfer, the system does not retaliate; it waits.”

 

Or, as Shanker put it, “The constitutional framework can be compared to a high-security vault door that only opens outwards through impeachment. The administrative staff, the collegium and the executive can only try to nudge it open through persuasion and procedure. They cannot force it without risking the very independence they are sworn to protect.”