What is the role of State government in appointment of High Court Chief Justice? | Explained
A state government raised objections after the Union notified the appointment of a High Court judge as Chief Justice of that High Court, contending that its views had not been obtained before the notification was issued
The Supreme Court Collegium had recommended the appointment of the Acting Chief Justice of the High Court concerned to the post of Chief Justice
The state government's cabinet passed a resolution urging that the oath-taking ceremony be deferred until its views were sought and considered, citing the procedure prescribed under the Memorandum of Procedure (MoP) for judicial appointments
The episode has reopened the constitutional question of how much weight a state government's views carry in High Court Chief Justice appointments, and whether the state's consent is a precondition or a non-binding consultative step
Article 217 — Appointment of High Court Judges
Article 217(1) of the Constitution provides that every Judge of a High Court, including the Chief Justice, shall be appointed by the President by warrant under hand and seal after consultation with the Chief Justice of India (CJI), the Governor of the State, and — in the case of appointment of a judge other than the Chief Justice — the Chief Justice of that High Court.
The current dispute centres on whether the Governor's (and by extension, the state government's) consultation was completed before the Centre notified the appointment — a procedural question distinct from whether the state can block the appointment outright, which it constitutionally cannot.
The Collegium System — Second and Third Judges Cases
The Collegium system, by which senior judges rather than the executive have primacy in selecting judges, was judicially evolved (it does not appear in the constitutional text) through a sequence of Supreme Court rulings interpreting the word "consultation" in Articles 124 and 217.
The appointment under dispute was made through the Collegium system; the controversy is not about the Collegium's authority to recommend but about a procedural step in the Memorandum of Procedure that governs how state-level consultation is sequenced before the Centre notifies the appointment.
The Memorandum of Procedure (MoP) for Judicial Appointments
The Memorandum of Procedure is an executive document (not a statute or constitutional provision) framed by the Government of India in consultation with the Chief Justice of India that lays down the sequence of steps for appointing and transferring judges of the Supreme Court and High Courts. It was first issued after Independence and has been revised over time.
Key Details
- For a High Court Chief Justice appointment, after the Supreme Court Collegium finalises its recommendation, the Union Law Ministry is required, under the MoP, to seek and consider the views of the state government concerned before the President's warrant is issued
- The MoP requirement to obtain state government views is a procedural safeguard for cooperative federalism in judicial appointments, but it does not give the state a power of concurrence — the Supreme Court's Collegium jurisprudence has clarified that such consultation is advisory
- Failure to complete this consultative step before notification is the specific procedural objection raised in the present case, distinct from any claim that the state government's consent was legally required
The state government's objection is framed as an MoP procedural lapse (views not awaited) rather than a constitutional veto claim, since the state's consent is not a substantive precondition for the President's appointment under Article 217 or under Collegium jurisprudence.
- Article 217(1): High Court judges (including Chief Justice) appointed by the President after consultation with the CJI, the Governor of the state, and (for judges other than the CJ) the Chief Justice of that High Court
- Second Judges Case: 1993, nine-judge bench, 7:2 majority, established Collegium primacy over the executive
- Third Judges Case: 1998, Presidential Reference under Article 143, expanded the Supreme Court Collegium to the CJI plus four senior-most judges
- NJAC/99th Amendment (2014) struck down: October 2015, restoring the Collegium system
- MoP requirement: Union Law Ministry must seek the state government's views on a High Court Chief Justice recommendation before the appointment is notified
- Judicial position: Consultation under Article 217/MoP does not equate to the state government's concurrence or veto power