The appointment of Justice Ashwani Kumar Mishra as Chief Justice of the Punjab and Haryana High Court, notified on 5 September 2026, has drawn an unusually public objection from the State of Punjab, whose Cabinet resolved the next day that the appointment had been made without the State's consent. The real question, however, is not whether Punjab's consent was required, for it plainly was not. It is whether a State that has been asked for its views, and has not given them, can be said to have been consulted when the rules prescribe no time within which it must answer.

That question arises because the Memorandum of Procedure treats the two kinds of High Court appointment differently. Where the Chief Justice of a High Court proposes a new judge, the State Government has six weeks to comment. If it does not reply, paragraph 14 permits the Union to presume that the Governor, that is, the Chief Minister, “has nothing to add”, and to proceed. Where the appointment is of the Chief Justice, paragraph 6 prescribes no period at all.

It is submitted that this gap, rather than the conduct of either party, lies at the heart of the dispute, and that it can be closed by a single amendment to a document the Government has been expected to revise since 2015.

A Gap In The Memorandum

The Collegium recommended Justice Mishra on 6 August 2026, and the Law Ministry 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. The Union notified the appointment on 5 September together with seven others, and the Chief Minister stayed away from the oath two days later. The Additional Solicitor General has since maintained that a week or two was ample time for the State to respond, while Punjab's own Cabinet has acknowledged that no time limit is prescribed for the appointment of a Chief Justice.

Consultation, Not Consent

Punjab's claim to a right of consent cannot be sustained. Article 217(1) requires only “consultation” with the Chief Justice of India and the Governor of the State, and it has been well settled since S.P. Gupta v. Union of India, 1981 Supp SCC 87, that consultation is not concurrence. The Constituent Assembly, moreover, considered and rejected attempts to diminish the State's part in the process. On 7 June 1949 it voted down amendments moved by K.C. Sharma and Shibban Lal Saksena that would have removed the Governor from the appointment clause altogether.

The State's voice was thus preserved, though never as a veto.

But consultation is no empty formality. In Union of India v. Sankalchand Himatlal Sheth, (1977) 4 SCC 193, a Constitution Bench held that consultation under Article 222(1) means “full and effective, not formal or unproductive, consultation”. In Mahesh Chandra Gupta v. Union of India, (2009) 8 SCC 273, the Supreme Court held that a court may examine an appointment for “lack of effective consultation”, though not the suitability of the appointee. Whether Punjab was effectively consulted is therefore a justiciable question, and the answer depends on who, for present purposes, is the “State”.

Who Speaks For The State?

Article 217 names the Governor. Since the Punjab and Haryana High Court is a common High Court, Article 231(2)(a) extends that reference to “the Governors of all the States in relation to which the High Court exercises jurisdiction”, and both Governors, according to the Additional Solicitor General, conveyed their approval. The Governor, however, does not ordinarily act on individual judgment. In Samsher Singh v. State of Punjab, (1974) 2 SCC 831, a seven-judge Bench held that the Governor exercises the powers of that office on the aid and advice of the Council of Ministers, except where the Constitution gives the Governor a discretion.

The Memorandum itself reflects the distinction. Paragraph 14 records that “the Governor is bound by the advice of the Chief Minister”, whereas paragraph 6, which governs Chief Justices, 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, therefore, the Memorandum contemplates the view of the State Government and not merely that of the Governor. Whether the Governor of Punjab acted on ministerial advice is not publicly known, and the State Government expressed no view of its own.

Article 163(3) compounds the difficulty, since it bars any court from inquiring “whether any, and if so what, advice was tendered by Ministers to the Governor”. If the process may be completed on a Governor's letter alone, the one fact that decides whether consultation was effective is something no court can examine. Punjab has not, so far as reported, approached any court. If it did, an argument founded on Mahesh Chandra Gupta would soon run into Article 163(3).

None of this, however, entitles a State to withhold its views indefinitely. A State that could hold a file without limit would possess, in substance, the veto that the Constitution denies it. 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. The Union's “week or two”, however reasonable, is equally a standard of its own making, found nowhere in the Memorandum.

Why The Gap Will Widen

The difficulty is likely to grow. In February 2026 the Collegium 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, however, are made under Article 222, which requires consultation 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 consultation 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 1 August 2026, seven of the eight High Courts that received Chief Justices on 5 September were functioning under acting Chief Justices, and the Rajasthan High Court had been led by an acting Chief Justice since 28 September 2025. Paragraph 5 of the Memorandum 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.

A Deadline For Paragraph 6

The remedy lies within the Memorandum itself. After the NJAC judgment, Supreme Court Advocates-on-Record Association v. Union of India, (2016) 5 SCC 1, the Supreme Court said in a December 2015 order that the Government may finalise the Memorandum in consultation with the Chief Justice of India. That work remains unfinished. Paragraph 6 should 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 which it should be presumed that the State has nothing to add.

Paragraph 6 should further 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. Consultation 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.

Author is an Advocate practicing in Delhi. Views are personal.