Under the ‘Collegium System’ for judicial appointments, if the President (Government) returns a Supreme Court judge recommendation for reconsideration and the Collegium reiterates it, what must the President do?
• The Memorandum of Procedure (MoP) between the Government and the judiciary provides that if the Collegium reiterates its recommendation after the Government returns it for reconsideration, the President (Government) is BOUND to appoint.
• This was established through the Second Judges Case (Supreme Court Advocates-on-Record Association v. Union of India, 1993) and the Third Judges Case (Presidential Reference, 1998).
• In 2015, the Constitution (99th Amendment) Act established the National Judicial Appointments Commission (NJAC), but the Supreme Court struck it down in the Fourth Judges Case (NJAC case, 2015) as it violated the basic structure (judicial independence).
• The Collegium system remains in place despite persistent criticism about opacity and lack of accountability.
• The tension between executive desire for a consultative role and judicial primacy in appointments remains unresolved.