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Sibal says will challenge in SC, Fali Nariman asks was Minister under pressure?

Sibal was also a lawyer in the Second Judges’ case that established the collegium system.

Written by Maneesh Chhibber | New Delhi |
August 15, 2014 1:09:30 am
 Kapil Sibal Kapil Sibal

The two Bills meant to revamp the system of appointment of judges to the Supreme Court and high courts and end the 20-year-old collegium system may have been cleared by Parliament on Thursday but could now face the test of the Supreme Court.

For, former Union Law Minister Kapil Sibal and eminent jurist Fali Nariman have decided to challenge the Constitutionality of the proposed new set-up.

Sibal said today he has decided to challenge the Constitution (121st Amendment) Bill, 2014, and the National Judicial Appointments Commission Bill, 2014 in the Supreme Court.

Speaking to The Indian Express, Sibal said: “The legislation as passed by the two Houses of Parliament violate the basic structure of the Constitution and it is my duty as a lawyer to seek legal remedy to this serious breach of Constitution by the government. The Supreme Court can and should go into this issue, especially since this pertains to the crucial matter of independence of judiciary.”

Asked by when does he intend to move court, Sibal said, “As soon as possible. The petition is being readied and I am going to settle it soon.”

Incidentally, Sibal was also a lawyer in the Second Judges’ case that established the collegium system.

If Sibal does challenge the vires of the two Bills, he will become the first former Law Minister to challenge in court the proposed new system of appointments to the higher judiciary.

On Wednesday, Sibal had told this newspaper that there were “serious problems” with the Bill and that the judiciary would be called upon to go into its Constitutionality.

“The judiciary would be called upon to look at the entire legislation, clause by clause, see if it meets the criteria of independence of the judiciary, the foundation stone of a vibrant democracy. This, I believe, is a basic feature of the Constitution. A judicial determination will have to be made on this issue,” he said.

Sibal had said the main problem with the Bill was that it infringed upon independence of the judiciary. “This Bill allows two members of the proposed NJAC to scuttle the appointment of an individual. How can you give veto power to any two members of the NJAC? Such a provision can be misused,” he said.

Apart from Sibal, Constitutional expert Fali Nariman also announced that he will challenge the Bill in the Supreme Court. He said that the Supreme Court had the power to strike down the Bill if it violated the Constitution.

“…The independence of the judiciary is now the cornerstone of the Constitution. And anything that is done which damages it is anathema and the people who decide are the judges of the Supreme Court,” he told Karan Thapar on Headlines Today.

“Many lawyers including myself will move in that direction,” he said, suggesting that he may challenge the Bills. Nariman, who was among the experts consulted by Law Minister Ravi Shankar Prasad, said he was not happy with the composition of the proposed NJAC which will have only three judges out of six members. The fact that it gives veto power to any of the two members to scuttle any recommendation made by a majority is not acceptable, he said.

“I am sure the Law Minister did not intend all this. He never said all this. We never knew it was going to be the position. What was the tearing hurry?,” Nariman said. He said their “distinct impression” after the meeting, which took place in the last week of July, was that this Bill was not going to come up in the current session.

“I personally think there has been some super important event that has occurred which has left all of us flummoxed…some new development in the party itself of which none of us are aware,” he said.

Chief Justice of India R M Lodha has already come down heavily on those criticising the collegium system. “There is a misleading campaign going across to defame the judiciary and repeated attempts have been made to spread incorrect information,” a bench headed by him observed earlier this week.

— with PTI

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