Punjab stand on judge sets disturbing precedent

Why in the News

Justice Ashwani Kumar Mishra has taken oath as Chief Justice of the Punjab and Haryana High Court, with the front-row chair reserved for the Punjab Chief Minister left empty. A day earlier the State Cabinet had asked the Punjab Governor to hold off the oath-taking. Its stated ground was that the Centre notified the appointment without the State’s consent, in breach of the Memorandum of Procedure (MoP) that governs judicial appointments. The Supreme Court Collegium had recommended Justice Mishra and three other judges as chief justices of four High Courts on 6 August, and the Centre notified the appointment on 5 September. The contest is between a State’s right to be consulted on a High Court appointment and a consultative process that fixes no deadline for the State to answer.

What is the Memorandum of Procedure?

1. The rulebook for judicial appointments: The MoP sets out the sequence by which judges of the higher judiciary are recommended, consulted upon and appointed.
2. It requires the States to be consulted: Before a High Court appointment is notified, the Centre must consult the State concerned.
3. It fixes no time limit on the State: The document sets no deadline for a State to send its response.
4. It is an executive document, not a statute: The MoP is settled between the Centre and the judiciary, and a revised version sought after the National Judicial Appointments Commission was struck down in 2015 remains unfinished.

What is Punjab’s case?

1. Consent was not obtained: The Cabinet’s position is that the Centre notified the appointment without the State’s concurrence, which it treats as a breach of the MoP.
2. No deadline binds the State: Punjab is correct that the MoP prescribes no deadline for a State’s response, so a delayed reply violates nothing on the document’s own terms.
3. The flexibility has a purpose: That absence of a deadline exists because judicial appointment is designed as a consultative process rather than a clearance queue.

Why does the case not hold?

1. Weeks were available and went unused: If the State government had reservations about Justice Mishra, it had weeks in which to put them on file, where they could have been examined on their merits.
2. The silence blocked three other courts: The delay in Punjab’s response held up all four chief justice appointments recommended in the same Collegium resolution.
3. The court had recently ruled against the State: As Acting Chief Justice, Justice Mishra’s bench pulled up Punjab in August for withholding dearness allowance dues and for finding ample money for advertising. His court also heard a Mohali case in which allegations were made against the Chief Minister’s wife, which the ruling party has described as politically motivated.

Is this an isolated episode?

1. The same move was attempted in Delhi: The Aam Aadmi Party earlier sought to have Justice Swarana Kanta Sharma taken off the appeal in the excise policy case in which its leaders are arraigned as accused.
2. The precedent this sets: Treating an adverse order as a personal affront converts a judicial outcome into a ground for obstructing an appointment, which is a template no political party should be able to rely on.

What reform does the episode point to?

1. Defined timelines belong in the MoP: The episode makes the case for writing fixed response periods into a document that currently has none.
2. A benchmark already exists on the other side: The Supreme Court has set the Centre a benchmark of three to four weeks for clearing names reiterated by the Collegium.
3. Deemed consent closes the gap: A comparable window for State responses, after which consent is treated as given, would remove the ambiguity this episode exposed.

Conclusion

Disagreement between the Centre and a State over an appointment is ordinary constitutional business, and nothing about it is improper. Withholding a reply is not disagreement; it is the absence of one, and it quietly converts a consultative step into a veto that no rule ever granted. A written objection with reasons can be examined and answered; silence can only be waited out. What remains unresolved is whether the duty to consult carries a corresponding duty to respond, and the present arrangement supplies no answer either way.

Back2Basics: The Collegium

1. What it is: The Collegium is the body of senior judges that recommends appointments and transfers in the higher judiciary. It finds no mention in the text of the Constitution.
2. Its composition: For Supreme Court appointments it consists of the Chief Justice of India and the four seniormost judges of the Supreme Court.
3. Where it came from: It emerged from the Second Judges Case (1993), which read “consultation” in Articles 124 and 217 as concurrence, and was expanded by the Third Judges Case (1998).
4. Its binding force: The government may return a recommendation once, but a name reiterated by the Collegium is binding on it.

Matching Previous Year Question

“[2025, GS2, 15.0 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.”