Justice Dharam Veer Sharma, one of the three judges on the Lucknow bench of the Allahabad High Court, which heard and reserved the order in the highly controversial and sensitive six-decade-old title dispute of Babri Masjid/Ram Janmabhoomi at Ayodhya in Uttar Pradesh, will be retiring on October 1.
The uncertain situation has arisen as the Supreme Court, which is hearing a plea for deferment of the High Court’s judgment, has posted it for September 28, three days before Justice Sharma retires.
Now, the question is what will happen to the HC judgment if the apex court continues hearing the case beyond October 1? When a counsel asked the SC bench as the matter came up before it on September 22, Justice R V Ravindran quipped: “What will happen? The case will go on”. The other judge on the bench, Justice H L Gokhale observed that “the government could take care of” the fact that the judgment might be delayed indefinitely.
Speaking to Deccan Herald, former judge of the apex court Justice Rajinder Sachar said the government can appoint Justice Sharma as an “ad-hoc judge” till the judgment was pronounced. He said there was a precedent in Supreme Court itself. “However, such instances are rare”.
Incidentally, there is one precedent in the high court and that happened when Justice Gokhale was CJ of Allahabad HC. In 2007, he recommended the re-appointment of Justice O P Srivastava, who retired on June 9 that year. The President then reappointed Srivastava as additional judge on September 1, 2007. The reason for re-appointing Srivastava was that he was hearing the Ayodhya title suits. He finally retired on August 31, 2008. Justice Gokhale was acting as per Article 224-A of the Constitution under which the CJ has powers to reappoint a judge.
The catch here is when he is reappointed, the judge, though amongst the senior most judges, has to become junior-most judge in the HC.
Article 224-A says the CJ of a HC, with the previous consent of the President, can appoint a person who has held the office of the judge of that HC or any other HC. While his allowances are determined by the President, he can have all the jurisdiction, powers and privileges of a judge of that HC.
The other way out – which was perhaps never been experimented – is to ask the bench to deliver the judgment but not make it public and that it would be made public if and when the Supreme Court decides.
Justice Sharma, had on September 21, disagreed with the majority order of the HC that rejected the plea to defer the verdict on the Ayodhya title suit cases in order to allow mediation.