From various HCs to IHC: Permanent transfer of 3 judges offended Article 175A: minority judgement

ISLAMABAD: Two judges of the Constitutional Bench of the Supreme Court held that the permanent transfer of three judges from the Lahore, Sindh and Balochistan High Courts to the Islamabad High Court (IHC) by the President under Clause (1) of Article 200 of the Constitution has offended Article 175A and has made the same redundant.

Justice Naeem Akhter Afghan and Justice Shakeel Ahmad, on Friday, released their minority judgment regarding the transfer of judges from various High Courts to the IHC.

The majority judgment by Justice Mazhar, Justice Shahid, and Justice Panhwaron September 25 declared that the entire procedure for the transfer of judges from different High Courts to the IHC was followed in letter and spirit, and consent was accorded with proper application of mind.

Transfer of judges to IHC within framework of Constitution: SC CB

A five-member Constitutional Bench, headed by Justice Muhammad Ali Mazhar and comprising Justice Naeem Akhter Afghan, Justice Shahid Bilal Hassan, Justice Salahuddin Panhwar and Justice Shakeel Ahmad on 19th June, 2025 by majority of 3 to 2 declared that transfer of judges under Article 200 is within the framework of the Constitution, and (permanently or temporarily) cannot be construed as a fresh appointment.

The minority judgment noted that due to the issuance of the impugned notification by the President in the wrong exercise of discretion, a ripple has been caused in the comity of Judges and the turbulence created in IHC has seriously affected the working relationship amongst the Judges of IHC which has consequently affected the smooth working and disposal of IHC, making the litigants to suffer at large.

The issuance of the impugned notification in the wrong exercise of discretion by the President has frustrated the legitimate expectancy of the sitting Judges of IHC, the Judges senior to Justice Sardar Muhammad Sarfraz Dogar in LHC, the judges senior to Justice Khadim Hussain Soomro in SHC, and the judges senior to Justice Muhammad Asif in BHC about their future prospects.

The judgment said that the process for the transfer of three particular Judges to IHC was initiated and completed by MoLJ with unnecessary haste, not in the public interest but, prima facie, with the motive to deprive the then Senior Puisne Judge of IHC (Mohsin Akhtar Kayani, J.) of his consideration/appointment as CJ IHC and to take over control of the affairs of IHC and District Judiciary of ICT from the sitting Judges of IHC and to hand over the same to the Transferee Judges.

It noted that the narration/language of the summary reveals that the process for transfer of the above two Judges to IHC was not initiated at the desire/instructions of the President and the record is silent as to upon whose instructions MoLJ initiated the said summary.

The judgment noted that in all the letters written by Secretary MoLJ for obtaining consent of the Transferee Judges and for consultation/concurrence of the CJs of the High Courts and CJP, neither the nature of transfer i.e. permanent or temporary nor the issue of seniority or taking fresh oath by the Transferee Judges were mentioned and in this regard no input was availed by MoLJ from all the concerned. In this regard, the CJP was also kept in the dark by MoLJ.

It said under Clause (1) of Article 200 of the Constitution, consultation by the President with the CJP and CJs of the High Courts is mandatory. The consultation is supposed to be effective, meaningful, purposive, consensus-oriented oriented leaving no room for complaint of arbitrariness or unfair play.16 The process for the transfer of three Judges to the IHC is lacking effective, meaningful, and consensus-oriented consultation by the President with the CJP and CJs of the High Courts.

Copyright Business Recorder, 2025