Appointment of High Court Chief Justice- Role of State Government

Under the Constitution of India and the established Collegium system, the State Government has a limited consultative and procedural role in the appointment of a High Court Chief Justice. It cannot appoint, approve, reject, or veto a candidate recommended by the Supreme Court Collegium.

The Punjab government has objected to the appointment of the new chief justice of the Punjab and Haryana high court, saying that the government views were not awaited.

Why in the News?

• The Punjab Cabinet objected to the appointment of Justice Ashwani Kumar Mishra as Chief Justice of the Punjab and Haryana High Court.
• Punjab argued that the appointment was notified without adequately considering the State government’s views.
• The issue raises an important constitutional question: Does the State government have the power to approve or reject the appointment of a High Court Chief Justice?

Role of State Government

• The State government has a consultative role, but cannot appoint or veto the appointment.
• Under Article 217, a High Court judge is appointed by the President after consultation with:
  • Chief Justice of India (CJI)
  • Governor of the concerned State
• For judges other than the Chief Justice, the Chief Justice of that High Court is also consulted.

How Does the State Government Enter the Process?

• Under Article 163, the Governor ordinarily acts on the aid and advice of the State Council of Ministers.
• Therefore, the State government’s views can form part of the Governor’s consultation with the President.
• However, State government consent is not mandatory.
• Article 217 uses “consultation”, not “consent” or “approval”.
• Therefore: State Government Consultation → No Veto Power

Evolution of Judicial Appointments

The appointment of High Court Chief Justices in India has evolved from executive-led appointments to a judiciary-driven collegium system, with the constitutional framework primarily governed by Article 217 of the constitution.

1. First Judges Case - 1981

S.P. Gupta v. Union of India

• The Supreme Court of India held that “consultation” does not mean “concurrence”.
• This gave the Executive greater influence in judicial appointments.

2. Second Judges Case - 1993

Supreme Court Advocates-on-Record Association v. Union of India

• Established the Collegium system.
• Gave primacy to the judiciary in judicial appointments.
• The CJI’s opinion was required to be an institutional opinion, formed with the two senior-most Supreme Court judges.

3. Third Judges Case - 1998

Re: Special Reference No. 1 of 1998

• Further clarified the Collegium system.

For Supreme Court appointments:

• CJI + 4 senior-most Supreme Court judges

For High Court appointments:

• CJI + 2 senior-most Supreme Court judges

Attempt to Replace the Collegium

National Judicial Appointments Commission (NJAC)

• In 2014, Parliament enacted:
  • 99th Constitutional Amendment
  • NJAC Act
• The proposed NJAC included:
  • CJI
  • Two senior-most Supreme Court judges
  • Union Law Minister
  • Two eminent persons

Supreme Court Decision – 2015

Supreme Court Advocates-on-Record Association v. Union of India

• The Supreme Court struck down the 99th Amendment and NJAC Act by 4:1 majority.
• It held that greater executive involvement could compromise judicial independence.
• Judicial independence was treated as part of the Basic Structure of the Constitution.
• The Collegium system was restored.

Present System

Key Constitutional Principle

The present appointment system seeks to balance:

• Judicial independence
• Executive/State consultation

The judiciary has primacy in recommending appointments, while the executive participates in the constitutional process.

Conclusion

The role of the state government in Punjab and Haryana High Court chief justice is an important constitutional process. Under the article 217 of the constitution, the chief justice is formally appointed by the president of India. The appointment follows the collegium system, in which the supreme court collegium recommends the name of a suitable judge. The state government does not have the power to appoint or reject the candidate. However, its role is mainly consultative. The views of the state government may be sought during the appointment process under the memorandum of procedure (MoP). The issue recently became controversial after the Punjab government raised objections over the appointment of the chief justice of the Punjab and Haryana high court, arguing that its views were not taken before the appointment. The controversy highlights an important question about the balance between the union and state governments in judicial appointments. It also shows the importance of consultation while maintaining the independence of the judiciary.