Punjab govt objects to appointment of Ashwani Kumar Mishra as HC chief justice, asks Centre to stop oath ceremony
The state Cabinet of Punjab passed a resolution objecting to the Union government's notification of Justice Ashwani Kumar Mishra's appointment as Chief Justice of the Punjab and Haryana High Court, and asked the Centre to defer the oath ceremony.
The state government contended that the appointment was notified without adequately considering the state's views, calling it a departure from the procedure prescribed for High Court Chief Justice appointments.
The Supreme Court Collegium had recommended the appointment in early August, the Union government sought the state's views shortly after, and the Centre notified the appointment before the state's formal response was received.
The Union government's counsel stated that other state governments had submitted their views within the customary timeframe, and that a state's views under the appointment procedure do not amount to a veto over the Collegium's recommendation.
Article 217 — Appointment of High Court Judges (including Chief Justice)
Article 217(1) of the Constitution provides that every Judge of a High Court, including its Chief Justice, is appointed by the President by warrant under hand and seal, after consultation with the Chief Justice of India, the Governor of the state concerned, and — for appointment of a judge other than the Chief Justice — the Chief Justice of that High Court. The Governor's consultation is the constitutional channel through which the state government's views formally enter the process; it is not a requirement of state government "consent."
The Punjab government's objection centres on whether the state's views were adequately obtained before the notification — a procedural question about the manner of consultation under Article 217, not a challenge to the President's constitutional power to appoint.
The Collegium System and the Memorandum of Procedure (MoP)
The Collegium system — under which the CJI and senior Supreme Court judges effectively decide judicial appointments and transfers — was evolved through the Second Judges Case, Supreme Court Advocates-on-Record Association v. Union of India (1993), which held that "consultation" under Articles 124 and 217 effectively means "concurrence" of the CJI. The Third Judges Case (In re Presidential Reference, 1998) expanded the Collegium to include the CJI and four senior-most Supreme Court judges. The Memorandum of Procedure (MoP), finalised in 1998 and updated periodically, lays down the step-by-step process — including the stage at which the state government's views are sought — that operationalises these judgments.
Key Details
- The MoP requires the Union Law Minister to obtain the state government's views on a High Court Chief Justice appointment before the recommendation is placed before the Prime Minister and President
- The MoP does not prescribe a fixed deadline within which the state must respond, nor a "deemed no-objection" clause for Chief Justice appointments — unlike some other stages of the process, which allows ambiguity over how long the Centre must wait
- The 2015 attempt to replace the Collegium with the National Judicial Appointments Commission (99th Constitutional Amendment Act and NJAC Act, 2014) was struck down by the Supreme Court in the Fourth Judges Case, Supreme Court Advocates-on-Record Association v. Union of India (2015), as violative of the basic structure (independence of judiciary)
The core of the state's objection is that the Centre notified the appointment before its views were furnished, exploiting the absence of a fixed timeline for state consultation in the MoP — a well-documented procedural gap in the Collegium framework.
State Consent vs Consultation — No Veto Power
Constitutional and legal opinion is settled that a state government's views on a High Court Chief Justice appointment are consultative, not a matter of consent or veto. The Governor's/state's role under Article 217 is one of several inputs into the Collegium-driven process; the final recommendation and decision rest with the Collegium and the President.
Key Details
- This is distinct from matters requiring actual state "concurrence," such as certain Article 3 boundary alterations (state legislature's views sought but not binding on Parliament) or GST Council recommendations (federal consultative body, not a single state veto)
- The distinction between "consultation" (views sought, not binding) and "concurrence" (binding agreement) is a recurring constitutional theme — also central to how the Collegium itself reinterpreted "consultation" in the Second Judges Case
- No mandamus or judicial precedent has held that a state government can block or delay a High Court Chief Justice appointment already recommended by the Collegium
The Union's position — that other states responded within about a week and that state views are not a veto — reflects this settled legal position, framing the dispute as one of procedural courtesy and timing rather than a substantive legal bar to the appointment.
- Constitutional provision for HC judge/Chief Justice appointment: Article 217(1)
- Collegium system origin: Second Judges Case, SCAORA v. Union of India (1993); expanded by Third Judges Case (1998)
- Memorandum of Procedure (MoP): finalised 1998, governs the appointment process including state consultation
- NJAC (99th Amendment + NJAC Act, 2014) struck down: Fourth Judges Case, SCAORA v. Union of India (2015)
- High Court judge retirement age: 62 years (Article 217(1)(a))
- Sequence in this case: Collegium recommendation (early August) → Centre sought state views (mid-August) → Centre notified appointment (early September) without a formal state response on record