Judicial Transfer Creates Unprecedented Seniority Crisis
The transfer of Justice J Nisha Banu from the Madras High Court to the Kerala High Court has created an unprecedented constitutional dilemma that highlights the grey areas in India's judicial appointment system. What makes this case particularly significant is the dramatic erosion of seniority that Justice Banu would face if she accepts the transfer, moving from the third position in Madras to ninth in Kerala.
The Career Trajectory and Sudden Disruption
Justice Nisha Banu, born in September 1966, has had a distinguished judicial career since her elevation to the Madras High Court bench on October 5, 2016. With over nine years of service and three years remaining before retirement, she had reached the prestigious position of being the third-most senior judge at the Madras High Court, making her a collegium judge.
In the seniority-conscious Indian judiciary, this position represented a crucial career milestone. From this vantage point, Justice Banu stood at the threshold of potentially becoming a Chief Justice of a High Court or even a judge of the Supreme Court. Currently, the Supreme Court has only one woman judge, Justice B V Nagaratna, who is scheduled to become the first-ever woman Chief Justice of India before her retirement in October 2027.
The Controversial Transfer Decision
The situation took an unexpected turn during the Supreme Court's August collegium meeting, where 14 judges from various High Courts were recommended for transfer. While Justice Banu's inclusion in the transfer list wasn't entirely surprising, the destination assigned to her raised eyebrows across legal circles.
The Union Ministry of Law and Justice notified her transfer to the Kerala High Court on October 14, citing Article 222 of the Constitution. The notification directed her to assume charge of her office in the Kerala High Court but notably lacked any specific timeframe for compliance.
This transfer would demote Justice Banu from her current third position in seniority at Madras to the ninth position in Kerala. Legal experts point out that alternative transfers were available that would have preserved her seniority better, such as the Andhra Pradesh High Court where she would have automatically become the second-most senior judge.
Constitutional Conundrum and Divided Reactions
Since the transfer notification, Justice Banu has been on medical leave and has reportedly requested reconsideration of her transfer. She has stopped attending court proceedings or meetings, creating an ambiguous constitutional situation.
The legal community has responded with divided opinions. One section of lawyers has sent representations to the Supreme Court and Union government, highlighting how the transfer would severely curtail Justice Banu's career prospects. They argue that diluting a judge's seniority to such an extent through transfer is unusual and concerning.
Meanwhile, another group has characterized Justice Banu's non-compliance as defiance and has written to authorities seeking immediate action. This polarization reflects the complex nature of the situation.
Broader Implications for Madras High Court
The crisis comes at a challenging time for the Madras High Court, which already faces significant vacancies. Against a sanctioned strength of 75 judges, 20 positions remain vacant, with another vacancy expected next month.
The current constitutional uncertainty raises critical questions about the functioning of the Madras High Court collegium. With Chief Justice set to retire in March 2026 and the senior-most puisne judge, Justice R Suresh Kumar, demitting office in May 2026, Justice Banu's fluid status creates complications for future judicial appointments.
Legal experts clarify that unlike government servants, judges aren't formally relieved from their posts. The Constitution treats judges with dignity and allows them reasonable time to transition between courts. However, this cannot continue indefinitely until Justice Banu's superannuation.
Potential Solutions to the Crisis
Jurists have proposed several solutions to resolve this unprecedented situation. The primary recommendation suggests that the Supreme Court should modify its transfer recommendation, sending Justice Banu to a High Court where her existing seniority wouldn't be compromised and her career prospects remain intact.
Alternatively, if the Supreme Court and Union government decide to reject her reconsideration request, they could specify a clear timeframe for her to join the Kerala High Court in the rejection order itself.
A third option involves simply canceling the transfer order, allowing Justice Banu to continue serving at the Madras High Court until her eventual elevation or retirement. This would restore normalcy to the judicial appointment process in Madras while respecting her established seniority.
This case underscores the need for greater transparency and consistency in judicial transfers, particularly concerning seniority considerations that significantly impact career trajectories within the Indian judiciary.
