Day after Cabinet move, Mann skips Chief Justice’s oath event

Why in the News

Justice Ashwani Kumar Mishra has taken oath as Chief Justice of the Punjab and Haryana High Court. The Punjab Cabinet had passed a resolution a day earlier demanding that the appointment and the administration of the oath be put on hold until the State’s views were obtained and duly considered. The Punjab Governor administered the oath at Chandigarh, and the Punjab Chief Minister did not attend. The Union Ministry of Law and Justice had already notified the appointment under Article 217(1) of the Constitution. The contest is over what a State’s views amount to in a High Court Chief Justice’s appointment, a consultative input the Centre may record and move past, or a consent it must first obtain.

What is the Memorandum of Procedure?

1. What it is: The Memorandum of Procedure is the written document setting out the steps for appointing judges to the Supreme Court and the High Courts.
2. Where it comes from: It was framed to give administrative effect to the collegium system established through the Second and Third Judges cases. It is neither a statute nor part of the Constitution.
3. What it governs: It fixes who initiates a proposal, who is consulted, and the order in which the file moves between the collegium, the State and the Union government.

How was this appointment processed?

1. Collegium recommendation: The Supreme Court collegium recommended four High Court Chief Justices, including this one, on 6 August.
2. Views sought from the States: On 12 August the Centre sought the views of the Chief Ministers and the Governors of the four States concerned.
3. The notification: The Appointments Division of the Department of Justice notified the appointment on 5 September under Article 217(1), with effect from the date the appointee assumes charge.
4. He was already discharging the office: The Centre had asked him on 1 June to perform the duties of Chief Justice, after the previous Chief Justice was elevated to the Supreme Court.

What does Punjab say was violated?

1. The resolution: An emergency Cabinet meeting resolved that the appointment and the administration of the oath be held until Punjab’s views were obtained and duly considered.
2. Consent, not consultation: The State’s stated position is that the appointment was made without obtaining the consent of the State government.
3. A pattern claim: The resolution described the step as another instance of the Centre bypassing Punjab’s constitutional rights and established procedure.
4. The ground stated publicly: The Chief Minister’s objection rested on the Memorandum of Procedure and on constitutional norms rather than on any statutory bar.

Where does the process actually leave a State?

1. Article 217(1) names its consultees: The President appoints a High Court judge after consultation with the Chief Justice of India and the Governor of the State. A Chief Minister acts through the Governor and is not a separate consultee.
2. No deadline binds a State’s reply: The Memorandum of Procedure stipulates no time period within which a State must respond to a request for its views.
3. Chief Justice appointments move fastest: Consent for the appointment of a Chief Justice is dealt with immediately in practice, so a State that does not answer quickly is overtaken by the file.
4. Consultation is not concurrence: A collegium recommendation reiterated after reference back binds the executive. A State’s view is an input into that process and not a veto over it.

Why is this friction not an isolated episode?

1. A pending money order against the State: The High Court directed the Punjab government on 3 August to release pending dearness allowance instalments and arrears to employees and pensioners.
2. The State has gone to the Supreme Court: Punjab has filed a special leave petition against that ruling, delivered by a division bench headed by the same judge while he was acting Chief Justice.
3. Policies stayed and rolled back: The High Court stayed the Land Pooling Policy, 2025 in August 2025 and the Punjab Unified Building Rules, 2025 in December 2025, and the State later withdrew or reversed both.
4. Welfare corpus diversion blocked: In July 2026 the High Court stayed a proposal to divert the Punjab Building and Other Construction Workers’ Welfare Board corpus to other schemes.
5. The electoral clock: Punjab Assembly elections are less than six months away, which gives the confrontation a political audience it would otherwise lack.

Challenges to the Memorandum of Procedure

1. It carries no legal force: The Memorandum is an executive document, so no participant can be compelled to complete a step within any time. Eg. The revised Memorandum sought after the National Judicial Appointments Commission judgment of 2015 has still not been settled between the government and the collegium.
   The Fix: Give the Memorandum statutory backing, so each stage carries a deadline that a court can enforce.
2. Delay operates as a silent veto: The Union government can sit on a recommendation without formally rejecting it, which produces the outcome of a rejection without the record of one. Eg. Names reiterated by the collegium have remained pending with the government for well over a year on repeated occasions.
   The Fix: Treat a reiterated recommendation as notified if the government does not act on it within a fixed period.
3. The consultation record is closed: Views submitted by a State or a Governor are never published, so a claim that they were ignored cannot be tested by anyone. Eg. Punjab’s objection here rests on a file that no one outside the process can read.
   The Fix: Publish the sequence of consultations for every appointment, with the date each input was received and acted on.
4. Transfers proceed without stated grounds: The Memorandum does not set out the criteria on which a judge is moved from one High Court to another. Eg. Collegium resolutions record transfers as being in the interest of better administration of justice, with no further reasoning.
   The Fix: Require a written and published reason for every transfer proposal before it is acted upon.

Conclusion

The appointment has gone through and the disagreement it exposed has not. A State can be consulted on a High Court appointment while nobody is obliged to wait for its answer, which makes the consultation real in form and empty in effect. That gap is not a Punjab problem, and it will recur wherever a State government and the Centre sit on opposite sides. Closing it needs a written timeline binding on both, not a resolution passed after the file has already moved.

Matching Previous Year Question

“[2017, GS2, 10 marks] Critically examine the Supreme Court’s judgement on ‘National Judicial Appointments Commission Act, 2014’ with reference to appointment of judges of higher judiciary in India.”