Justice Sen had faxed his resignation letter to the President five days before the Lok Sabha was to take up an impeachment motion against him. This raises fresh questions whether impeachment proceedings against him in Lok Sabha on Monday will go on as scheduled.
Attorney General GE Vahanvati, however, recommended that impeachment motion to remove Justice Sen as the judge of the Calcutta High Court must go on in the Lok Sabha despite his resignation.
Justice Sen had faxed his resignation to the President perhaps to avoid the ignominy of becoming the first judge to be impeached by Parliament but according to the rules, the letter needs to be in his own handwriting and not in copy form, official sources said.
The sources said the President referred the resignation to the Justice department with a note that faxed resignation is not acceptable and it needs to be in original and signed in his own handwriting.
Legal and constitutional experts said Sen’s resignation has put the ball in President’s court since she has to now decide whether to accept his resignation or leave it to the Lower House to proceed with impeachment proceedings.
In Kolkata, Sen’s lawyer Subash Bhattacharya said the resignation letter in original has been signed by the judge and sent by courier to the President and Speaker Meira Kumar.
However, a Rastrapati Bhawan spokesperson said “a lawyer on behalf of Justice Sen has handed over a resignation letter to the President on Saturday morning. The President is perusing it,”
A constitutional entity is free to tender his resignation on his own volition and action and there is no acceptance involved, the sources said, adding it comes into effect immediately if the resignation is in order.
In the Constitution, there is no acceptance involved and the resignation given by a constitutional entity under hand and addressed to the President comes into effect immediately.
The Minister of State for Parliamentary Affairs Rajiv Shukla felt there is no scope for any discussion in the Lok Sabha but said the Government would have to ascertain the rules on the issue before any decision is taken.
Parliamentary Affairs Minister Pawan Kumar Bansal had said that a decision whether to go ahead with impeachment proceedings against Sen will be taken after Lok Sabha receives communication from the Law Ministry.
He said, “If there is a clear resignation, perhaps the matter comes to an end and if there is any doubt the proceedings might go on”.
According to senior advocate Ram Jethmalani and former Lok Sabha General Secretary Subhash C Kashyap.
It is now left to the President whether to accept the resignation or keep it pending for the process of removal of the judge to be completed.
Slightly differing with them was former Chief Justice of India V N Khare and Constitutional expert Anil Divan who said “President is bound to accept the resignation unless there is something against him” and that the motion becomes infructuous on resignation of a judge.
However, Kashyap said, “it is a grey area whether in all cases, the President has to accept the resignation.”
“When the process of removal of a judge is initiated and one House has already held him guilty and the Lower House has to take up the matter, whether resignation is bona fide or not is to be decided by the President,” he said.
Jethmalani said “well, personally, I think that the Lok Sabha has the jurisdiction to proceed because there is a difference between removal and resignation. There will be an order from the President for removal.” The President can accept his resignation , he said.
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According to Kashyap said the President is left with three alternatives. First, he said as per decision of the Supreme Court in 1978 in Gopal Chandra’s case if three conditions (resignation by own hands, addressed to the President and categorically stating his resignation from the office) are fulfilled the person ceases to be in office.
Second is that the President keeps the matter pending and wait for the process of removal to be completed in both the Houses.
Third alternative is political in which the politicians decide to let the matter die its own death on the grounds that due to paucity of time the matter could not be taken up in this session
The Rajya Sabha has already passed the motion against Justice Sen, the first judge to have been impeached by the Upper House for misconduct.
Justice Sen was found guilty of misappropriating Rs 33.23 lakh under his custody as a court-appointed receiver in the capacity as a lawyer, and misrepresenting facts before a Calcutta court in a 1983 case.
In his letter to the President, Justice Sen said, “I am not guilty of any form of corruption”.
The procedure for removal of a judge has to be completed in the same session of Parliament