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Missing Deadline in Memorandum of Procedure at Heart of Punjab Chief Justice Appointment Dispute
The appointment of Justice Ashwani Kumar Mishra as Chief Justice of the on has ignited an unusually public confrontation between the and the . The resolved the very next day that the appointment was made without the state’s consent, and the Chief Minister conspicuously stayed away from the oath-taking ceremony. Yet the core legal issue is not whether Punjab’s consent was required—it plainly was not—but whether the process, as defined in the , can be considered effective when no time limit binds the state to respond.
This gap in the MoP lies at the centre of the dispute and, as this analysis will argue, a single amendment introducing a six-week deadline for state views on Chief Justice appointments could prevent similar standoffs in the future.
The Missing Time Limit
The MoP treats the appointment of puisne judges and Chief Justices differently. For a proposed new judge, gives the state government six weeks from receipt of the proposal to comment. If the state fails to reply within that period, the Union is permitted to presume that the Governor “has nothing to add” and proceed with the appointment. For the appointment of a Chief Justice, however, paragraph 6 prescribes no period at all.
In the present case, the recommended Justice Mishra on . The sought Punjab’s views between 10 and 12 August. Haryana, which shares the High Court, responded, as did the Governors of both states. Punjab’s elected government did not. On 5 September, the Union notified the appointment alongside seven others. The Additional Solicitor General later maintained that a week or two was ample time for the state to respond, while Punjab’s own Cabinet acknowledged that no time limit is prescribed for Chief Justice appointments.
The absence of a deadline creates a vacuum. A state that can withhold its views indefinitely possesses, in substance, the veto that denies it. As the author of the opinion piece notes, “Punjab had the proposal for more than three weeks and offered nothing, and if it had objections to Justice Mishra, it ought to have stated them.”
, Not Consent
requires only “ ” with the Chief Justice of India and the Governor of the state before a High Court Chief Justice is appointed. It has been well settled since S.P. Gupta v. Union of India (1981) that is not . The Constituent Assembly considered and rejected attempts to diminish the state’s role—on it voted down amendments by K.C. Sharma and Shibban Lal Saksena that would have removed the Governor from the appointment clause altogether.
But is no empty formality. In Union of India v. Sankalchand Himatlal Sheth (1977), a Constitution Bench held that under Article 222(1) means “ .” In Mahesh Chandra Gupta v. Union of India (2009), the held that a court may examine an appointment for “ ,” though not the suitability of the appointee.
Whether Punjab was effectively consulted is therefore a . The answer depends on who, for present purposes, is the “state.”
Who Speaks for the State?
Article 217 names the Governor as the consultative authority. Since the is a common High Court, Article 231(2)(a) extends that reference to the Governors of both states. According to the Additional Solicitor General, both Governors conveyed their approval. However, the Governor does not ordinarily act on individual judgment. In Samsher Singh v. (1974), a seven-judge Bench held that the Governor exercises powers on the of the Council of Ministers, except where gives a discretion.
The MoP itself reflects this distinction. Paragraph 14 records that “the Governor is bound by the advice of the Chief Minister,” whereas paragraph 6 requires the Law Minister to obtain “the views of the concerned State Government” and to place the proposal before the Prime Minister only “after receipt of the views of the State Government.” On its own terms, the MoP contemplates the view of the state government, not merely that of the Governor.
Whether the Governor of Punjab acted on ministerial advice is not publicly known. The state government expressed no view of its own. Article 163(3) compounds the difficulty by barring any court from inquiring “whether any, and if so what, advice was tendered by Ministers to the Governor.” If the process can be completed on a Governor’s letter alone, the one fact that decides whether was effective is something no court can examine.
A Gap That Will Widen
The problem is not confined to this case. In , the resolved that a judge proposed as Chief Justice may be transferred to the destination High Court well in advance, preferably two months before the vacancy arises. Transfers under Article 222 require only with the Chief Justice of India, and the state has no role at that stage. If Chief Justices increasingly arrive by advance transfer, the under Article 217 will often take place after the judge is already sitting in the state’s High Court.
Delay within the judiciary aggravates the problem. On , seven of the eight High Courts that received Chief Justices on 5 September were functioning under acting Chief Justices. The had been led by an acting Chief Justice since . provides that an acting arrangement should ordinarily not exceed one month, requires the process to be completed at least one month before the anticipated vacancy, and places the initiative with the Chief Justice of India. Where recommendations are late, every later step is compressed, and the state’s step is the one most easily sacrificed.
The Remedy: A Deadline for Paragraph 6
The remedy lies within the MoP itself. After the NJAC judgment ( Advocates-on-Record Association v. Union of India , 2016), the said in a order that the government may finalise the MoP in with the Chief Justice of India. That work remains unfinished.
Paragraph 6 should be amended to give the state government six weeks from receipt to convey its views on a proposed Chief Justice, as paragraph 14 already does for other judges. After that period, it should be presumed that the state has nothing to add. Additionally, paragraph 6 should require that the views be those of the state government, conveyed through the Governor, so that the record discloses whose view it is.
Other federal systems have faced the same tension. In the United States, the Senate Judiciary Committee in 2017 ceased to treat a home-state senator’s withheld “blue slip” as a bar to appeals court nominees, reasoning that those courts serve more than one state. India need not narrow the state’s role; a time limit would suffice.
Such a deadline would impose no burden on the Union if the Chief Justice of India initiates proposals as early as paragraph 5 already requires. Under it, Punjab would have had until about 23 September to respond, and the Union could then have proceeded on a record that no one could fault. bounded by time protects the legitimacy of an appointment and not merely its speed, and it is that legitimacy which the present dispute has called into question.
Conclusion
The Punjab Chief Justice appointment dispute is not fundamentally about a state’s right to veto—a right that does not exist—but about the procedural clarity needed to ensure . The Memorandum of Procedure’s silence on a time limit for state views under paragraph 6 has created a vacuum that invites conflict. By introducing a six-week deadline, the government can close this gap, preserve the state’s voice, and restore confidence in the appointment process. As the author of the opinion piece concludes, “ bounded by time protects the legitimacy of an appointment and not merely its speed.”
