High Court Chief Justice Appointments: State’s Role and Judicial Primacy

Context

The Punjab Cabinet has objected to the Centre’s notification appointing Ashwani Kumar Mishra as Chief Justice of the Punjab and Haryana High Court, alleging that the State government’s views were not awaited. The issue raises an important constitutional question: does a State government have the authority to approve or oppose the appointment of a High Court Chief Justice?

Constitutional Position on High Court Appointments

Under Article 217, High Court judges are formally appointed by the President of India after consultation with the Chief Justice of India (CJI) and the Governor of the concerned State.

For appointments other than the Chief Justice, the Chief Justice of the concerned High Court is also consulted.

The State government does not directly appoint a High Court Chief Justice. Its involvement comes indirectly through the Governor.

• Article 163 provides that the Governor ordinarily functions with the aid and advice of the State Council of Ministers.
• Consequently, the State government’s views can become part of the consultation process through the Governor.
• However, the Constitution requires consultation, not State consent.
• Hence, the State government does not possess an independent veto over the appointment merely because it disagrees with the proposed candidate.

This distinction between consultation and concurrence is central to understanding the controversy.

Evolution of Judicial Appointments through Supreme Court Rulings

The present appointment mechanism is largely the product of the Judges Cases, through which the Supreme Court progressively established judicial primacy.

First Judges Case – 1981

In S.P. Gupta v. Union of India, the Supreme Court interpreted “consultation” as not necessarily requiring concurrence.

The judgment therefore left considerable scope for the executive to influence judicial appointments.

Second Judges Case – 1993

The position changed significantly in Supreme Court Advocates-on-Record Association v. Union of India.

A nine-judge Bench gave primacy to the judiciary in appointments and established the foundation of the Collegium system.

It held that the CJI’s opinion should represent an institutional view rather than an individual preference, formed in consultation with senior Supreme Court judges.

Third Judges Case – 1998

Through Re: Special Reference No. 1 of 1998, the Supreme Court further clarified the composition and functioning of the Collegium.

• For Supreme Court appointments, the Collegium consists of the CJI and four senior-most judges.
• For High Court appointments, the relevant Collegium includes the CJI and two senior-most Supreme Court judges.

The underlying constitutional rationale was to preserve judicial independence by limiting excessive executive influence over judicial selections.

The NJAC Episode and Its Rejection

Parliament attempted to replace the Collegium with a more broadly constituted mechanism through the 99th Constitutional Amendment and the National Judicial Appointments Commission (NJAC) Act, 2014.

The proposed NJAC included:

• Chief Justice of India;
• Two senior-most Supreme Court judges;
• Union Law Minister; and
• Two eminent persons.

The arrangement would consequently have provided the executive with a larger role in judicial appointments.

In Supreme Court Advocates-on-Record Association v. Union of India (2015), the Supreme Court struck down the 99th Amendment and the NJAC Act by a 4:1 majority.

The majority considered judicial independence to be part of the Basic Structure of the Constitution and held that the proposed arrangement endangered that principle. The Collegium system was therefore restored, although the Court also recognised the need for greater transparency and accountability.

What Does This Mean for the Punjab Government?

The Punjab government can express its views through the constitutional consultation process, but such views do not amount to a statutory or constitutional veto.

The broader framework therefore distributes functions among different institutions:

• Judiciary: exercises primacy in recommending candidates through the Collegium.
• Governor/State government: participates in the consultation process.
• Union executive: processes the recommendation and advises the President.
• President: makes the formal appointment under Article 217.

Thus, disagreement by a State government does not, by itself, invalidate a High Court Chief Justice appointment.

Key Constitutional Tension

The controversy highlights a larger institutional balance between judicial independence and executive accountability.

While judicial primacy seeks to prevent political interference in appointments, the participation of the executive and constitutional authorities ensures that the appointment process is not entirely insulated from institutional scrutiny.

The challenge is therefore to maintain a system where consultation is meaningful, while preventing consultation from becoming an indirect veto.

Way Forward

• Strengthen transparency in the Collegium’s recommendations and reasons.
• Ensure that consultations with the concerned constitutional authorities are genuine and properly documented.
• Establish clearer timelines for processing judicial appointments.
• Improve institutional coordination between the Collegium, Union government, Governor and State authorities.
• Continue reforms aimed at balancing judicial independence, accountability and transparency.

Conclusion

The Punjab episode demonstrates that the State government has a consultative role, not an appointing or vetoing power, in High Court Chief Justice appointments. The constitutional framework, reinforced by the Judges Cases and the NJAC judgment, places judicial primacy at the centre of appointments while retaining executive participation. The long-term priority should be to make this process more transparent, predictable and institutionally cooperative.

Source : The Hindu