The Punjab-Centre Standoff on a High Court Appointment Sets a Bad Precedent

The Lift Line

Treating adverse orders as a personal affront cannot become a template for parties in power.

Why This Editorial Matters for Your Exam

Judicial appointments, the Collegium, the Memorandum of Procedure and the National Judicial Appointments Commission are among the most heavily examined GS2 themes, and the September 2026 Punjab episode gives a live case study for a Mains answer on federalism, judicial independence and the Centre-state consultative process. The three to four week benchmark the Supreme Court set for the Centre on reiterated names is the reform template a strong answer will invoke.

GS Paper 2: Structure, organization and functioning of the Executive and the Judiciary; appointment to various Constitutional posts, powers, functions and responsibilities of various Constitutional Bodies.

Background and Context

As of early August 2026, the Supreme Court Collegium had recommended Justice Ashwani Kumar Mishra and three other judges for appointment as Chief Justices of four High Courts. Punjab did not file a response in the following month. The Centre notified the appointment on 5 September 2026. On the eve of the oath, the Punjab Cabinet met and requested Governor Gulab Chand Kataria to hold off the ceremony, arguing that the Memorandum of Procedure had been breached because the Centre had notified the appointment without state consent. The oath took place with an empty chair in the front row reserved for Chief Minister Bhagwant Mann.

The Analysis

1. The letter of the Memorandum and its purpose. The MoP requires the Centre to consult the state government before a High Court appointment. It fixes no deadline for the state’s response. Punjab is right on the letter. The purpose of the flexibility, however, is to allow substantive consultation on the merits of a specific candidate, not to enable a state to delay indefinitely and then object at the last minute when the outcome becomes uncomfortable.

2. The context of Justice Mishra’s bench. As Acting Chief Justice, Justice Mishra’s bench had pulled up the Punjab government for withholding dearness allowance dues even as it found money for advertising, and had heard a Mohali case in which allegations were made against the Chief Minister’s wife. The AAP has described the Mohali case as politically motivated. The context does not disprove Punjab’s procedural argument, but it sharpens the concern that the objection is retrospective.

3. Judicial independence rests on the appointment. The security of tenure and the manner of appointment are the constitutional pillars of judicial independence under Article 217 for High Court judges. A pattern in which state governments delay consultation to veto Chief Justices who have passed adverse orders against them would erode that independence in practice, even if it clears procedural hurdles on paper.

4. The pattern is not unique to Punjab. Earlier in Delhi, the AAP had sought to have Justice Swarana Kanta Sharma taken off the appeal in the excise policy case in which party leaders are arraigned as accused. Treating adverse orders as a personal affront cannot become a template for political parties, whether in state capitals or in Union ministries.

5. The reform template is already available. The Supreme Court has set a benchmark for the Centre to clear names reiterated by the Collegium within three to four weeks. A comparable window for state responses on Chief Justice appointments, after which consent is deemed given, would remove the ambiguity this episode exposed without stripping consultation of substance. The change is technical; it would sit in the MoP itself and would preserve the state’s substantive right to be heard.

6. The federal question, correctly framed. Punjab has a legitimate role in the consultation process; federalism requires it. The right way to exercise that role is to file substantive objections on the specific candidate within a defined window, which becomes part of the public record and reasoning. The wrong way is to wait, use silence as leverage, and object on procedure once the outcome is unfavourable.

7. The norm question the rule cannot fix. Even the best-drafted MoP amendment leaves standing the underlying norm question of whether governments will accept adverse judicial orders and continue to cooperate on appointments. That is a political culture question. The rule can constrain the worst outcomes; only norms can produce the good ones.

Data and Institutions Vault

Prelims-grade facts:

The episode:

• The background: the Supreme Court Collegium recommended Justice Ashwani Kumar Mishra and three other judges as Chief Justices of four High Courts on 6 August 2026.
• The Centre notified the appointment on 5 September 2026 after Punjab did not respond within a month.
• Justice Mishra took oath as Chief Justice of the Punjab and Haryana High Court on a Monday in September 2026, with Chief Minister Bhagwant Mann’s chair left empty; Governor Gulab Chand Kataria administered the oath.

The constitutional and process architecture:

• Article 217 provides for the appointment of a High Court judge by the President.
• The consultees under Article 217 are the Chief Justice of India, the Governor of the State and the Chief Justice of that High Court.
• Article 222 governs transfer of a judge from one High Court to another.
• The Collegium system evolved through the Second Judges Case (1993) and Third Judges Case (1998); the Supreme Court Collegium comprises the Chief Justice of India and the four senior-most judges of the Supreme Court.
• The Memorandum of Procedure (MoP) is jointly drawn up by the Union and the Supreme Court and governs the appointment process; it fixes no deadline for the state government’s response on a High Court appointment.
• The NJAC Act, 2014 and the Constitution (Ninety-ninth Amendment) Act, 2014 were struck down in the Fourth Judges Case (2015).
• The ground was violation of the basic structure, judicial primacy in appointments being held part of it.

The reiteration doctrine and its benchmark:

• If the Supreme Court Collegium reiterates a name, the Executive is bound to accept the recommendation, per the Second and Third Judges cases.
• The Supreme Court has set a benchmark of three to four weeks for the Centre to clear a reiterated recommendation.

The recent Delhi precedent:

• Earlier in Delhi, the AAP sought to have Justice Swarana Kanta Sharma taken off the appeal in the excise policy case; the request was declined.

Watch the trap: The Governor administers the oath to a High Court Chief Justice under Article 219 read with the Third Schedule; the state Cabinet does not appoint or de-appoint a Chief Justice. The Cabinet’s request to hold off the oath is a political intervention, not a constitutional power.

A second trap: The NJAC was struck down in the Fourth Judges Case (2015), not the Third. The Third Judges Case (1998) is the Presidential reference that clarified the Collegium’s composition and procedure.

The Debate

FOR fixing a state-response deadline: A defined window, mirroring the Supreme Court’s three to four week benchmark for the Centre on reiterated names, would remove the ambiguity that lets a state use silence as leverage. State objections filed within the window would be recorded and reasoned; silence beyond the window would be deemed consent. Consultation retains its substance; stalling loses its cover.

AGAINST a rigid deadline: A rigid deadline can push a state to file token objections in a rush, without the depth of investigation that a substantive consultation requires. The current flexibility, correctly used, allows a state to raise genuinely late-emerging concerns, and a deemed-consent rule might tilt the balance too far towards the Union in a Constitution that treats consultation as substantive.

Balanced verdict: The three to four week window is a reasonable default because it mirrors the Centre-side benchmark and gives both sides symmetric procedural burdens. The safeguard against tokenism is a public reasoned filing requirement within the window, and a state right to seek an extension on stated grounds. The wrong route is what Punjab did: silence during the window and procedural objections after.

How to Think About This

Ask three questions for any Executive-Judiciary friction on appointments. What does the letter of the Memorandum of Procedure say? What is the purpose of the flexibility the Memorandum leaves? What is the norm the party in power would want if the roles were reversed? The third is the discipline that keeps procedure from being weaponised. A government that uses silence-plus-late-objection today will find the same tactic used against it in a different capital tomorrow.

Diagram-in-Words

PYQ Linkage

• UPSC CSE Mains 2019, GS2: “Do you think that constitution of India does not accept principle of strict separation of powers rather it is based on the principle of ‘checks and balances’? Explain.” Direct on the appointment-consultation architecture.
• UPSC CSE Mains 2018, GS2: “Whether the Supreme Court judgement (July 2018) can settle the political tussle between the Lt. Governor and elected government of Delhi? Examine.” Same “who decides” question in a different setting.
• UPSC CSE Mains 2015, GS2: “Resorting to ordinances has always raised concern on violation of the spirit of separation of powers doctrine. While noting the rationales justifying the power to promulgate ordinances, analyze whether the decisions of the Supreme Court on the issue have further facilitated resorting to this power. Examine.” Same interpretive-restraint theme.

Sources: Indian Express, Supreme Court of India, Punjab and Haryana High Court

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