Jan panel legally valid in light of SC rulings: Adv Gen

‘Appointing a sitting or retired judge makes no difference regarding legality of its findings’ 
The Advocate General of J&K, Mr. M. I. Qadri today said that Commission of Inquiry headed by a sitting or a retired judge does not make any difference regarding the legality of its findings, which are recommendatory in nature in both the cases, adding a Commission of Inquiry is appointed in terms of provisions of the Commission of Inquiry Act, 1962 and has to be headed by a sitting or a retired judge of the High Court or by an administrator. 
Mr. Qadri said this while reacting to a news report that appeared in a section of the press today, adding the comments made by two senior counsels regarding veracity of the one-man judicial commission were not well founded. Quoting a Supreme Court ruling in a case titled T. Fenn Walter Vs Union of India – AIR 2002 SC, which reads as “Quite often sitting judges are appointed as Inquiry Commissions……. The appointment of judges to head or chair a Commission of Inquiry or to perform other non-judicial work would create unnecessary burden on the judges and it would affect the administration of justice……. In view of the mounting arrears of cases in superior courts, it would be difficult to lend services of a judge for such Commission work. 
Mr. Qadri said that the judgement further states “In some matters, when political issues are also involved, even impartiality and objectivity of the Court may sometimes be questioned due to some extraneous and oblique motives. The public image and prestige of the Court as guardian of the Constitution and Rule of Law has to be maintained. It is desirable that the judges are not subjected to unwanted criticism on account of appointment as the Inquiry Commission. The image and the authority of the Court, which is of utmost importance, has to be upheld”.
Commenting on the reasons for not appointing a sitting High Court judge, the Advocate General referred to the reply of the High Court when former Chief Minister Mr. Ghulam Nabi Azad had sought services of a High Court judge to enquire into the alleged custodial killings in 2007. He said vide High Court letter No: 23151/RG dated February 21, 2007, the Hon’ble Court had conveyed that the “Appointment of a sitting judge of High Court would be contrary to the law laid down by the Apex Court”. 
As per the law laid down by the Supreme Court, the appointment of a sitting Judge of the High Court to head the Commission of Inquiry was not warranted, the Advocate General said, while quoting another judgement titled University of Kerala Vs Council, Principals College, Kerala and Ors, decided on April, 9, 2007.
The Advocate General said that there is no provision which provides for a judicial enquiry into an incident except section 176 of the Code of Criminal Procedure where the magistrate can hold the required enquiry. He said that in order to remove doubts, the government thought it fit to appoint a Commission of Inquiry so that the true picture comes before the public, adding the government is under a constitutional obligation to lay the said report on the table of the State Legislature where it will be debated and commented upon by the Members of the House. 
He said the apprehension that the government may not act upon the report of the Commission, if it is adverse, is not well founded in view of the report being subject to the scrutiny of the legislature. He said the comments that the findings of the Commission if accepted, the accused can challenge it before the Court is permissible under law and cannot be stopped. 
Removing doubts raised by a senior counsel regarding the eligibility of Justice Muzaffar Jan to head the Commission in view of having served as Member of J&K Accountability Commission, the Advocate General said these are not legally correct, elaborating Sub-Section 2 of Section 6 of J&K Accountability Commission Act, 2002 which makes a Chairperson and a Member ineligible on ceasing to hold the office for (i) reappointment in the Accountability Commission (ii) any other assignment or appointment which is required by law to be made by the Governor by warrant under his hand and seal (iii) further employment to any other office of profit under the Government of India or the Government of a State. 
The Advocate General said that the appointment of Mr. Justice (retd) Muzaffar Jan as the Commission of Inquiry does not fall under any of the above provisions, which could debar him from holding such office, as his appointment as the Commission of Inquiry is neither an office of profit nor is such appointment made by the Governor under his hand and seal.