ISLAMABAD, Apr 29 (APP): The Supreme Court’s constitutional bench on Tuesday adjourned the hearing of the Islamabad High Court judges’ transfer and seniority case until Wednesday. The petitioners’ counsel, Munir A. Malik, will continue his arguments tomorrow.
The five-member constitutional bench, headed by Justice Muhammad Ali Mazhar, heard the petitions challenging the transfer and seniority of three judges of the Islamabad High Court. The bench also included Justice Naeem Akhtar Afghan, Justice Shahid Bilal Hassan, Justice Shakeel Ahmed, and Justice Salahuddin Panhwar.
During the proceedings, Justice Mazhar asked counsel Munir A. Malik whether he had submitted his rejoinder. Malik replied that he had not yet done so but would file it soon after consulting his clients.
Arguing before the bench, Munir A. Malik stated that Article 200 of the Constitution pertains to temporary transfers. He began by referencing the historical context of judicial transfer provisions, starting with the Government of India Act 1935, which contained no clause for judicial transfers. The 1956 Constitution introduced such a clause, allowing the President to transfer judges in consultation with the Chief Justices of both High Courts. These transfers were either temporary or for a specified period.
Malik elaborated that even under the 1962 Constitution, transfers were time-bound. In the 1973 Constitution, Article 202 governed the terms and benefits of transferred judges. He argued that after the 18th Constitutional Amendment, Article 200 implied only temporary transfers. He emphasized that Clause 2 of Article 200 allows temporary transfers and noted that the 26th Amendment did not alter this provision.
Malik also pointed out that even under the 1935 Act, transferred judges were required to take an oath before assuming office, a practice that still holds. He stressed that Article 200 cannot be interpreted in isolation and must be read alongside Articles 2A and 175A, which ensure judicial independence and establish procedures for judicial appointments.
He added that in 1976, Article 200 was amended to define a one-year transfer term, which was extended to two years in 1985. Earlier constitutions and the 1935 Act required the judge’s consent for transfer, but this was removed in 1985, and a provision was added to consider a judge retired if he refused the transfer.
Malik emphasized that transfers must be made in the public interest and cannot be used as a punitive measure. In response to a query by Justice Shahid Bilal Hassan about the length of a temporary transfer, Malik stated that historically it was set at two years. However, Justice Mazhar observed that the current Constitution does not specify any such duration, which could imply an indefinite term.
Malik argued that if a judge is transferred without consent, the two-year limit should apply. Justice Mazhar remarked that it could also mean that a judge may accept a transfer for an indefinite period.
Malik highlighted that before the recent transfers, five judicial positions in the Islamabad High Court were vacant. As per the Constitution and judicial rules, nominations for vacant seats must come from the Judicial Commission. The appointment of a permanent judge cannot proceed without the Commission’s recommendation.
Justice Mazhar noted that the appointment process for permanent judges is laid out in Article 175A and added that the bench had agreed not to interrupt Malik during his arguments. Instead, a dedicated session for questions and answers will follow once he concludes.
Malik acknowledged the arrangement and remarked that, unlike in Pakistan, judicial transfers in India are routine and impartial.
The court later adjourned the hearing until Wednesday, with Malik scheduled to continue his arguments.