The Legal Significance of State Government’s Views in the Appointment of a High Court Chief Justice

Shaleen Mahajan

The appointment of Justice Ashwani Kumar Mishra as Chief Justice of the Punjab and Haryana High Court has brought a relatively procedural question concerning judicial appointments into the centre of a Centre–State dispute. The Punjab Government has objected to the notification by contending that the appointment was processed without obtaining its views as required under the Memorandum of Procedure (MoP) governing appointments to the higher judiciary. The Union Government, on the other hand, maintains that Punjab was given an opportunity to communicate its views and that the State has no power to veto the appointment.

The controversy is not principally about whether Punjab could approve or reject Justice Mishra’s appointment. The more important question is procedural that where the MoP requires the Union Government to obtain the views of the concerned State Government, can the appointment be notified while those views are still pending particularly when the MoP does not prescribe a definite period within which the State must respond?

The distinction between consultation and consent lies at the heart of the dispute. Justice Mishra had been functioning as Acting Chief Justice of the Punjab and Haryana High Court since June. On August 6, the Supreme Court Collegium, headed by Chief Justice of India Surya Kant, recommended his appointment as permanent Chief Justice. The Union Government subsequently sought the views of the concerned State Governments. According to the Centre, Punjab was asked to communicate its views on August 10 but did not respond. The appointment was ultimately notified on September 5, with Justice Mishra scheduled to take oath as Chief Justice.

Punjab took a different view. The State Cabinet demanded that the appointment and administration of oath be kept in abeyance until its views were obtained and considered. Chief Minister Bhagwant Singh Mann also wrote to the President, the Prime Minister and the Punjab Governor, forwarding a copy of the Cabinet resolution.

The constitutional foundation for the appointment of High Court judges is Article 217 which provides for their appointment by the President after consultation with the constitutionally specified authorities. However, the present appointment mechanism cannot be understood by reading Article 217 in isolation. It has developed significantly through the Supreme Court’s interpretation of the constitutional scheme in the Second Judges Case of 1993 and the Third Judges Case of 1998.

In Supreme Court Advocates-on-Record Association v. Union of India (1993) which is known as the Second Judges Case, the Supreme Court moved away from executive primacy in judicial appointments and gave primacy to the Chief Justice of India in the selection process. The 1998 Presidential Reference which is known as the Third Judges Case, further clarified and institutionalised the Collegium system. The MoP subsequently provided the procedural framework through which judicial recommendations are processed among the judiciary, the Union Government and the concerned State authorities.

The Collegium itself finds no express mention in Articles 124 or 217 of the Constitution. It is a constitutional mechanism that has evolved through judicial decisions. The MoP is significant because it gives procedural shape to this framework by setting out the steps through which recommendations for judicial appointments are processed.

This is why the present dispute cannot be resolved simply by asking whether the State Government has the final say. It does not. The more important question is whether the State’s participation in the prescribed process remains mandatory even though the State has no power to approve or reject the appointment.

The MoP uses the expression “views” rather than “consent” or “approval”. This distinction matters. The State Government may communicate its position, identify relevant circumstances or raise institutional concerns but it does not possess the authority to determine the outcome of the appointment. Treating the State’s views as a veto would be difficult to reconcile with the constitutional structure that emerged from the Second and Third Judges Cases under which the Collegium has primacy in the selection of persons for appointment to the higher judiciary.

But the absence of a veto does not necessarily mean that the procedural requirement can be disregarded. The State’s power to participate in the process is different from having the power to block the appointment.

The real difficulty lies in the wording of the MoP. If the Union Government is required to obtain the State Government’s views before the proposal moves forward, does merely requesting those views satisfy the requirement or must the Union actually receive them before proceeding to the next stage?

This distinction becomes particularly important because the MoP does not appear to prescribe a specific period within which the State Government must communicate its views on the appointment of a High Court Chief Justice. This leaves an important question unanswered that is how long must the Union Government wait before it can treat the State’s silence as a failure to respond?

The Centre’s position has considerable force. Consultation cannot become a way for a State to delay a constitutional appointment indefinitely simply by withholding its response. A constitutional appointment cannot reasonably remain pending forever because the authority consulted has chosen not to respond.

At the same time, the Union cannot treat simply sending a request to the State as completing the consultation process if the State has not been given a reasonable opportunity to respond. The real difficulty is determining when the State’s silence can be treated as a failure to respond rather than as a consultation that is still pending.

The answer cannot lie at either extreme. The State Government should not be able to delay an appointment indefinitely by withholding its response after being given a reasonable opportunity to communicate its views. Equally, the Union Government should not be able to proceed merely because it has sent a request to the State without giving it a fair opportunity to respond.The better approach is to strike a balance between the two. Where the MoP requires consultation but does not set a specific deadline then the Union Government should give the State a reasonable period to respond and maintain a record of the request and any reminders sent thereafter. If the State continues to remain silent despite having been given a fair opportunity then the Union should then be able to proceed rather than allowing the silence to hold up the appointment indefinitely.

The harder question is what happens if the Union Government proceeds without receiving the State’s views.Even if obtaining the State Government’s views is considered a mandatory procedural step, it does not necessarily mean that failure to do so would automatically make the appointment invalid. The legal consequence would depend on the nature and purpose of the requirement. If consultation is treated as an essential part of the appointment process and proceeding without it could invite judicial scrutiny for failure to follow the prescribed procedure. On the other hand, if the requirement is understood as giving the State a reasonable opportunity to express its views then a court may be less inclined to invalidate the appointment where the Union can show that it made a genuine effort to obtain a response and that the State nevertheless remained silent.

The key issue is not simply whether the appointment is valid or whether Punjab has a veto. It is whether proceeding without receiving the State’s views amounts to a significant departure from the prescribed procedure and, if so, then what legal consequence should follow.

The controversy also reflects a broader tension in India’s system of judicial appointments. The need to protect judicial independence while maintaining institutional accountability. The move away from executive primacy was driven by concerns that excessive government control over judicial appointments could undermine judicial independence. At the same time, the Collegium system has itself faced criticism over transparency, accountability and the absence of clearly defined selection criteria.

Parliament’s attempt to replace the Collegium with the National Judicial Appointments Commission through the 99th Constitutional Amendment reflected an effort to create a different institutional arrangement. In 2015, the Supreme Court struck down the NJAC by holding that judicial independence is part of the Constitution’s basic structure.

The broader constitutional lesson is relevant here. Constitutionalism is not only about who has the final power to decide but also about how that power is exercised. Institutional participation and procedural safeguards matter because constitutional powers must be exercised through established processes rather than left to unfettered discretion.

The Punjab dispute should therefore not be reduced either to an attempt by a State Government to interfere with judicial independence or to an assertion of federal supremacy against the Union. Its narrower and more consequential question is whether, where the governing framework requires the State Government’s views to be obtained, that procedural requirement was completed before the final executive step was taken.

The present controversy exposes a weakness in the MoP itself. A workable appointment framework should answer three basic questions that how long the concerned State Government has to respond, what happens if it does not and whether the Union Government can proceed once that period expires. The absence of clear answers creates uncertainty for every institution involved.

The solution is neither to give the State a veto nor to reduce its consultative role to a mere formality. The MoP could prescribe a definite period within which the State Government must communicate its views and allow the Union Government to proceed once that period expires, provided that the request for consultation, the opportunity given to the State and any failure to respond are formally recorded.

Such a framework would preserve meaningful State participation while providing certainty to the appointment process. It would ensure that consultation remains substantive without allowing silence to become an indefinite means of delaying an appointment.

The State’s role should therefore neither be treated as a power of consent nor reduced to an empty formality. It has a legitimate place in the consultative process but not the power to determine its outcome.

The Punjab–Centre dispute ultimately raises a broader constitutional question about not simply which institution has the final power to decide, but whether that power has been exercised through a fair and workable procedure.If the State has been given a genuine and reasonable opportunity to express its views but chooses not to respond then its silence should not indefinitely obstruct a constitutional appointment. At the same time, where the consultation is genuinely still pending, the Union should be able to justify proceeding without the State’s response.

The central issue is whether the prescribed process was complete when the Centre proceeded without receiving the State’s views. Until the MoP clearly specifies how long a State may take to respond and what follows from its silence, disputes of this nature are likely to remain unresolved, raising questions about the scope of consultation, procedural compliance and institutional accountability.

(The writer is a student of LL.M. (Criminal Law) Guru Nanak Dev University, Amritsar)