State consent not taken, put HC Chief Justice appointment on hold: Punjab Govt

Why in the News

The Punjab Cabinet has passed a resolution demanding that the appointment of Justice Ashwani Kumar Mishra as Chief Justice of the Punjab and Haryana High Court be put on hold. The resolution states that the Centre notified the appointment without obtaining the State government’s views, as the Memorandum of Procedure for the appointment of High Court judges requires. The Supreme Court Collegium had recommended four High Court Chief Justices on 6 August. The Centre sought the views of the Chief Ministers and Governors of the four States on 12 August, and notified the appointments on 5 September. The contest is over a document that gives a State a consultative role, sets no period within which the State must use it, and creates no right the State can enforce.

What is the Memorandum of Procedure?

1. A working document, not a statute: The Memorandum of Procedure sets out the steps by which judges of the Supreme Court and the High Courts are recommended, consulted on and appointed. It carries no statutory force and confers no enforceable right on any party.
2. It came out of the Judges cases: The Supreme Court’s Second Judges case (1993) and Third Judges case (1998) placed primacy in a Collegium of senior judges. The Memorandum was drawn up afterwards to record how the Collegium and the executive would process an appointment.
3. The State enters as a consultee: For a High Court appointment the Centre seeks the views of the Chief Minister and the Governor of the State before the recommendation is processed for notification.

What has Punjab demanded, and on what ground?

1. A hold on the appointment and the oath: The Cabinet resolved at an emergency meeting that the appointment and the administration of oath be put on hold until Punjab’s views are obtained and duly considered.
2. The stated ground is procedural bypass: The Cabinet described the appointment as “yet another instance” of the Centre bypassing Punjab’s constitutional rights and established procedure.
3. The objection was escalated to the constitutional heads: The Chief Minister wrote to the President, the Prime Minister and the Governor, enclosing the resolution. The Chief Minister is not expected to attend the oath ceremony.
4. The Bar has framed it as executive overreach: The Punjab and Haryana High Court Bar Association has read the notification as the executive acting past a procedural safeguard rather than as a routine posting.

Why did the appointment proceed without Punjab’s response?

1. The document fixes no time period: Nothing in the Memorandum states how long a State may take to send its views.
2. Convention supplies the missing clock: Consent for a Chief Justice is conventionally dealt with immediately, and inputs from a Chief Minister on a High Court judge take four to six weeks.
3. Silence is read as assent: After a certain period the Law Ministry deems that the State government had no objection to the recommendation.
4. Three other States had already replied: Bihar, West Bengal and Maharashtra sent their inputs immediately. The delay by Punjab held up those three appointments as well.

Where does this leave the wider appointments cycle?

1. Every High Court now has a regular Chief Justice: Eight appointments were notified on Collegium recommendations of 6 August and 31 August, filling all 25 High Courts. The Chhattisgarh appointment followed separately after its sitting Chief Justice retired on 4 September.
2. The Collegium’s attention shifts to the top court: Four vacancies remain in the Supreme Court, which trace to the Supreme Court (Number of Judges) Amendment Ordinance, 2026 raising the sanctioned strength in May. The Court currently sits at 34 judges.
3. The window is narrow: A fifth seat falls vacant on 29 November on a retirement, and the Chief Justice of India retires on 9 February 2027. These are the last recommendations the present Collegium can make.

Challenges to the Memorandum of Procedure

1. The revised document has stayed unsettled for a decade: After the Supreme Court struck down the National Judicial Appointments Commission in Supreme Court Advocates-on-Record Association v. Union of India (2015), a five judge Constitution Bench directed the government to finalise a revised Memorandum. Eg. Successive drafts have moved between the Collegium and the Law Ministry without agreement on a national security exception or on a permanent secretariat.
   The Fix: Settle the revised document against a dated deadline set by the Court, so that the operative rulebook is a published text rather than a decade of correspondence.
2. No clause binds the executive to notify within a period: A recommendation the Collegium reiterates is binding in substance, and nothing fixes when the notification must issue. Eg. Justice K M Joseph’s elevation was recommended in January 2018, returned by the government, reiterated in July 2018 and notified only in August 2018.
   The Fix: Write a fixed outer limit for notification into the revised Memorandum, with the recommendation taking effect on its expiry.
3. The criteria for selecting a Chief Justice are unpublished: Seniority combined with suitability operates as a convention rather than as a stated test, so a comparative assessment cannot be examined. Eg. Collegium resolutions record the name recommended without the assessment that produced it.
   The Fix: Publish the criteria and an anonymised comparative note with each Chief Justice recommendation.
4. A State’s view has no remedy attached to it: The Memorandum creates no right, so a State that believes it was not consulted has no forum that can stay the appointment. Eg. Punjab’s objection could travel to the President and the Prime Minister and to no authority able to halt the oath.
   The Fix: Record the State’s response, or its absence, on the file as a dated entry that the notification must recite.

Conclusion

The dispute is not about the individual appointed. It sets a State’s claim to be consulted against a document that binds nobody and can be satisfied by the passage of time. A State that responds late has its silence converted into consent, and a State that objects afterwards has nowhere to take the objection. Until the Memorandum of Procedure is itself settled, a State’s dissent on a judicial appointment will keep arriving as a political resolution rather than as a step in the appointment process.

Back2Basics: The Collegium system

1. What it is: A body of the senior most judges of the Supreme Court that recommends appointments and transfers of judges to the Supreme Court and the High Courts.
2. Composition: The Chief Justice of India and the four senior most judges of the Supreme Court for Supreme Court appointments. A smaller collegium of the Chief Justice of India and two senior most judges handles High Court recommendations.
3. Source of authority: It is a judicial creation, not a constitutional provision. Articles 124 and 217 speak only of consultation with the judiciary.
4. The executive’s residual role: The government may return a recommendation once with its objections. A reiterated recommendation is binding on it.

Matching Previous Year Question

“[2025, GS2, 15 marks] Discuss the evolution of collegium system in India. Critically examine the advantages and disadvantages of the system on appointment of the Judges of the Supreme Court of India and that of the USA.”