The author, Yash Mittal, is a student at Institute of Law, Nirma University, Ahmedabad.
In a multi-religious country like India, appropriations drawing exclusively on communal identities engender endless conflicts. The appropriation of history with regard to the Babri Masjid-Ram Janmabhoomi the dispute has been at the core of a violent political movement —which has spread hate, enmity and led to the construction of evil society by claiming the lives of many people.
The Supreme Court's attempt to heal the Hindi-Muslim relationship through a mediated settlement of the long-standing dispute deserves appreciation. A handful of responses appeared against the mediation from the gallery of people consisting of politicians, religious bigots, communalists and the dangerous communal politicians whereas it was welcomed by the legal fraternity. The antagonism related to mediation is influenced by their preaching and teachings. Religious bigots and communalists reckon upon the people’s faith and anticipated it as the battle of religion; on the other hand the Bhartiya Janta Party’s (BJP’s) feeble performance in 1984’s general election (only two seats) provided the saffron party the opportunity to play the politics on Ram Temple to strengthen the aggregation of Hindu votes.
The court-appointed former Judge of Supreme Court F.M. Ibrahim Kalifulla as the chairman of the mediation panel, with Spiritual leader Shri Shri Ravishankar and Senior Advocate Shri Ram Panchu as its members. Some crucial questions of faith need to be answered at this juncture i.e., does the Muslim side concede that the spot on which the mosque stood is indeed the birthplace of Lord Rama? Will the Hindu side compromise on the birthplace of Ram, which is central to their faith? Before analysing these questions I am remindful of the American author Ben Mezrich quote who describes the mediation process in an extract from his book Bitcoin Billionaires as,
“Mediation didn’t feel like war. It was more like a really long bus ride that ended only when everyone onboard got tired enough of the scenery to agree on a destination”.
Supposedly, the above-mentioned statement explicates the failure of the mediation process in Ayodhya Land title dispute, where the parties to the dispute were unsuccessful to come up with a settlement agreement in order to resolve the most tanglesome religious dispute of the country. Therefore the purpose of this article is to: firstly, understand the avenues of the Ayodhya land dispute, secondly, analyze the apex court decision to refer the matter for mediation and thirdly, critically expostulate the probable reasons which can be attributed the failure of mediation process.
Brief Background of the Ayodhya Land Dispute
The Ayodhya dispute became the prestige of both the Hindus and the Muslims by blending the flavour of political, historical and socio-religious components centered on a plot of land in the city of Ayodhya, Uttar Pradesh. The controversy revolves around the installed Babri Masjid, the structure over the land which was claimed by Hindus to be the birthplace of their deity Rama. Although the dispute was ninety years old but in the year 1992 it has taken a long leap which led to the destruction of the Mosque during a political rally leading to communal riots in India between Hindus and Muslims.
The matter went to the Allahabad High Court and after prolonged hearing in the year 2010 it has delivered the judgment citing the controversy as merely a property dispute, and ordered that the 2.77 acres of land need to be divided into three equal parts amongst the Nirmohi Akhada, Ram Lala Viraajmaan and the Sunni Waqf Board. Unsatisfied with the High Court decision, the appeal was filed before the Hon’ble Supreme Court by the Hindu outfits against the verdict of Allahabad High Court.
Why the Supreme Court has referred the matter to mediation?
Across the globe, mediation is recognized to be an effective dispute resolution mechanism that is successful in resolving a wide array of disputes including the one based on religious sentiments. The Ayodhya dispute was primarily treated as a land dispute but gradually attained the flavour of religious disputes by the involvement of religious sentiments of millions of citizens. After taking shape of religious disputes, sometimes it is found difficult for the courts to arrive at the decision which is unanimously acceptable to the parties. Judgment in the favour of one party may hurt the sentiments of other parties and vice-a-versa, which often converts into communal disharmony.
The Code of Civil Procedure, 1908, clearly states that judges must ensure that all avenues are exhausted to resolve a dispute outside the court. Section 89 of the Code states, “where it appears to the court that there exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of the settlement and give them to the parties for their observations”.
The five-judge constitution bench headed by the then Chief Justice of India Ranjan Gogoi referred the matter for mediation by stating that “if even there is a one percent chance of settling the dispute amicably, the parties should go for mediation.”
It can be ascertained that the Supreme Court decision to refer the matter for mediation was the final attempt for an out of court the settlement, where the court’s objective seems clear that the parties should settle the dispute on their own to avoid the court’s interference in the matter.
What made the mediation unavailing?
The final attempt of mediation went meaningless as predicted by several religious scholars and political leaders. Although this was not the first attempt there have been at least ten previous attempts of mediation (including one before the Babri Masjid demolition in December 1992) that failed to find a solution. Three were initiated by former Prime Minister’s (Chandrasekhar, PV Narasimha Rao, and A.B. Vajpayee), one proposed by former CJI J.S. Khehar, three by the litigants in the case (Mohammed Hashim Ansari, the oldest litigant in the case and retired bureaucrat Ramesh Chandra Tripathi) and three by spiritual leaders (Jayendra Saraswati, Dalai Lama, Shri Shri Ravi Shankar) and the Hindu and Muslim organizations.
At every occasion, parties were unable to reconcile on certain fundamental points. There were various factors involved in the failure of the mediation process of which some are tacit whereas few are shrouded. Let’s understand the variegated factors behind mediation fiasco:
Whether the parties were agreeable for the mediation?
The quintessential aspect of mediation is the consent and the presence of the concerned parties, who are associated with the dispute, at the time of mediation. Upon the question of mediation CS Vydhyanathan, the senior counsel appearing for Ram Lalla, made it clear that the Hindus will not secede their claim on Ram Janma Bhoomi as it has a divine value where Lord Rama was born. He further added that the Hindus will be happy to crowd-fund the construction of the Mosque but the Muslims should forgive their claim on the land. Furthermore, the Hindu groups opposed the Supreme Court’s recourse to Section 89 C.P.C. by relying on the Supreme Court Judgment in Afcons Infrastructure & Ors. v. Cherian Varkey Constructions & Ors where the court held that “the mediation cannot be done in a representative suit which involves a interest of large number of people who are not represented in the court.” The bench differed with the views of Hindu groups citing the provisions of Order I Rule 8 (representative suit) and Order XXIII Rule 3-B (Compromise of suit) of C.P.C. and stated that there was no legal impediment to making a reference to mediation. The court’s stubborn attitude to refer the matter for mediation despite the resistance of the Ram Lala Viraajmaan raises the question of whether the proposed mediation was really mediation between equal parties?
Whether the rigidity of parties culminated the seeds of trust deficit?
At many instances, it was argued by the Hindu side that the land is connected to them in the same manner as ‘Mecca and Medina’ is connected to Muslims. A mediated decision is based on the principle of give and take where the parties need to trust each other to arrive at an amicable solution but in the instant scenario, the entire mediation process was packed with trust deficit where neither party agreed on the principle of giving and takes. In the instant case neither of the parties was satisfied with the 1/3 of the disputed land and they truly want more shares which could be possible only in the fictitious scenario where either of the parties was willing to surrender their claim. The Nirmohi Akhada was confined to three sets of proposals in the entire mediation process namely:
- That, the Muslims must relinquish their claims over the land i.e., Ram Janma Sthal.
- That, the Mosque should not be constructed within 500 metres of the Ram Temple.
- That, the Nirmohi Akhada is ready to provide four acre of land near Vidyakund for the construction of Mosque.
Unrelenting its claim over the entire land the Sunni Waqf Board rejected the proposals of Nirmohi Akhada and Ramjanmabhoomi Nyas by commenting that they will not relinquish their claims over the piece of land unless directed by the country’s highest court.
Moreover, Advocate Eijaz Maqbool, who represented key Muslim litigant M. Siddiq in the Ayodhya land dispute, had accused the SC appointed mediation panel of leaking the false information related to the dispute. He contended that the mediation is an in-camera proceeding but if the information will leak it would hamper the credibility of the entire mediation process leading it to an exoteric stage.
Hence, it could be easily construed that the parties were hesitant to rely on each other offers and solutions as well as the Muslims perceive the mediation with a suspicion that the Hindus are dominating on them, making the objective of mediation worthless.
Whether questions about Sri Sri Ravishankar’s neutrality played a role in failure of mediation?
The role of the mediator is to facilitate the settlement between the adversarial parties, but in the instant case the neutrality of the Sri Sri came into question because of his previous public comments asking the Muslims to show bigger heart by gift one acre of land to the Hindus who in turn will gift five acres of land to Muslims for the construction of the mosque. The position of Sri Sri seems to be in favour of disputants belonging to one religion which resembles the attribute of personal bias resulting in failure to mediate.
Whether Muslims were reluctant to the consequence of mediation agreement?
Shouting slogan of “Yeh toh bas jhanki hai, Mathura aur Kashi abhi baaki hai” (this is only a tableau; Mathura and Varanasi is still left), several Karsevaks executed the demolition of Babri mosque. Muslims were reluctant about the future consequence of the infamous ‘Shahi Eidgah’ (Mathura) and ‘Gyanwapi-Mosque’ (Varanasi), if, Hindus get the Ram Janma Bhoomi through mediation. Hence, the uneasiness towards the outcome of mediation could be a major attribute to the mediation fails. However, if assurance was given from the Hindu side that it would not stake any claim to any other Mosques in India than it could result in a win-win situation.
Whether the mediation was a mere formality?
In the Ayodhya matter, the mediation and legal proceedings took place simultaneously. The common legal practice is that when an alternative mechanism for dispute resolution is going on, then the hearing usually stays. In one of the statements former Delhi High Court Chief Justice A.P. Shah said that “if legal proceedings and the mediation take place simultaneously, the mediating parties will not be serious about the process.” It could be ascertained that the Ayodhya mediation was just a formality because all the parties know that the verdict will be pronounced soon, so the chance of settlement was very less.
Whether less time provided for mediation resulted in failure to reach the settlement?
The Supreme Court had provided eight weeks’ time to settle the dispute and four weeks’ time to submit the report of the mediation. On July 15, 2019, the court allowed an application filed by M. Siddiq, through his legal heirs, to point out several discrepancies in the translations done by the Uttar Pradesh Government of the case records. He stated that “the testimonies alone run into 54 volumes consisting of 13,426 pages which have been translated into English by the government” which had been, since February 2019, verifying the translations. The applicant prayed before the court that verification of such testimonies is a herculean task, and more time for verification, and hence providing less time was also a crucial aspect of mediation failure.
Conclusion
Building a consensus among the parties’ is a crucial task of the mediator in order to amicably resolve the dispute. Undoubtedly, in the instant scenario mediation could have brought a win-win situation for the parties, long back, when it was attempted several times in the past. Unfortunately, the lack of consensus-ad-idem between the parties made the entire mediation process worthless. The parties had fear in their minds of what would be the outcome of the mediation process? The mediation process was inadvertently exposed to the political pressures from the right-wing organizations leading to a process in which one side faces the prospect of a disadvantageous position given the larger political context. The report of the mediation panel remains a hidden mystery as no one knows the potential reasons, stated in the report, behind the failure of mediation except the judges who presided over the matter. Hence only speculations upon the media reports and the reasoned views of the parties could be made which could attribute as the reasons to the failure of mediation process in the Ayodhya matter.
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