Shortly after partition and the Independence of India, in December 1949, idols of Ram and Sita appeared at the ‘Janmasthan’. The Hindus claim that this was a miracle, and proof of their claim that the place was the birthplace of Lord Rama. Contrary to this theory, the FIR recorded at Ayodhya police station on December 23 states that three individuals (Abhiram Das, Ram Shukla Das, and Sudarshan Das), along with some 50-60 people, had trespassed the mosque in order to install the idol.
In January 1950, one Gopal Singh Visharad (a member of the Hindu Mahasabha) filed a civil suit, asking for worship without obstruction and a perpetual injunction against the removal of the idols. In 1959, the Nirmohi Akhara filed a suit praying that the entire mosque be handed over to it. A suit claiming right over the mosque was filed by the Sunni Central Waqf Board in 1961. These cases have meandered through the Indian legal maze over the past five decades and are now before the Supreme Court.
On March 8, 2019, a Constitution Bench of the Supreme Court led by the Chief Justice of India, Ranjan Gogoi, directed that the batch of appeals in the Ramjanmabhoomi-Babri Masjid dispute be sent to a three-member mediation panel to explore the possibility of an amicable resolution.
The mediation proceedings, to be held in Faizabad, was expected to commence by March 15, 2019 as per the order of courtroom no. 1 of the apex court and the mediating panel headed by a former judge of the Supreme Court, Justice Fakkir Mohamed Ibrahim Kalifulla, with spiritual and humanitarian leader Sri Sri Ravi Shankar and senior advocate Sriram Panchu has been directed to send a report of the progress of the mediation within four weeks from that date.
It is interesting to note that the order directing mediation in the matter also records the objections raised by the litigants to the legality of mediation in a case which is representative in nature i.e. a case whose outcome affects not just the litigants but also those who the litigants claim to represent. This objection, perhaps, captures the essence of the “long-standing dispute”.
Mediation is not simply arriving at a negotiated consensus over a piece of land. The process involves a resolution of underlying emotions and sentiments. The land dispute in question has emotional overtones that threaten future peace if they are not resolved in a wholesome manner. Hindus must walk away with a sense that their hurts from a bygone era have been assuaged. Muslims must walk away with a sense of not having been coerced by majoritarian bullying, but having secured an equal stake in the safety of their lives, property, and places of worship. There cannot be a perceived loser, but a peaceful India must emerge as the winner as a result!
But the question at stake is the “viability” of mediation as a possible recourse in a protracted case of religious differences. On the legal side the whole recourse as a substitute sets on the requirements that give possible drift to such Alternative Dispute Resolutions. Section 89 of the CPC (Code of Civil Procedure), 1908 embodies the legislative mandate to the court to refer sub- judice disputes to various ADR mechanisms enunciated therein where it finds it appropriate to do so, in order to enable the parties to finally resolve their pending cases through well-established dispute resolution methods other than litigation.
The object behind the application of S. 89, CPC, 1908 lies in the promotion of alternative methods of dispute resolution which may be bound by any specific procedure and further resolves the dispute expeditiously.
While referring any case for the purpose of mediation, elements of settlement and acceptability to the parties are kept in concern. Court herein following the due process formulates the terms of the settlement, give them to the respective parties for their observations, record their observations and thereafter may reformulate the terms of a possible settlement and refer the same to a panel subscribing interests of sides for the alternative resolution process. If it appears to the settlement forum that the settlement of the dispute through that possible method is not in the interest of justice then it shall refer the matter once again to the court and hence cause further delay.
Despite Hindu groups opposing a negotiated settlement, the Supreme Court made it clear that an attempt should be made to settle the dispute by mediation. It overruled their objections by invoking Section 89 of CPC, 1908, arbitrarily without giving due consideration to the concern of both the side.
The viability of mediation may also be questioned on a representative basis as the issue in contention is representing larger communities and the settling forum is not inclusive of all of them. Also, locus standi of parties involved is also questionable as there is a difference in opinion regarding the construction of Mandir within the Muslim community itself.
In a two-judge bench Supreme Court judgment in Afcons infrastructure and Ors. v. Cherian Verkay Construction and Ors. [2010 (8) SCC 24], it was held that mediation cannot be done in a representative suit which involves public interest or the interest of a large number of persons who are not represented in the court.
While legally the dispute is in the nature of a conventional title dispute, nothing about the case is conventional. The case is a veritable crucible where history, religion, politics, and law meet, and in the absence of a formal institutionalised mechanism in this country for truth and reconciliation, it falls upon courts of law to determine the truth and dispense justice.
And yet, the Apex Court has directed mediation in a dispute which has a recorded legal history of 164 years at the very least and has been pending before the Supreme Court since 2010. Ironically, the Court’s approach, in this case, is in stark contrast to its approach to intervening in religious practices and traditions which have been preserved by communities and institutions for centuries, the Sabarimala judgment being a case in point.
Further, given the prolonged and convulsive history of the Ayodhya dispute through decades and the deep fissures it has caused and continues to cause because it is yet to be resolved, it would not be out of place to assume that there is an unbridgeable chasm between the litigating parties which too, is perhaps representative in nature. This means that to hope for an amicable resolution of the dispute through mediation is at best judicial optimism at work, which may not yield much particularly when this is not the first attempt at mediation in the dispute.
Secondly, there still exist chances of referring the same to the court for intermediate or final disposal by the settlement forum and more delay in justice.
It would be great if the case beforehand is redressed objectively by the highest court of the land on the basis of rigorous available evidence and civilised jurisprudence so that neither party can play the victim card and claim that it was shortchanged either by majoritarian coercion or minority appeasement, as the case may see afterward.
The matter must be decided on merits so that sustainability of the decision is maintained and respected amicably now or in the near future.
If observed from a more practical, subtle standpoint, the 4,300- page, 2:1 verdict of the three-judge Bench of the Allahabad High Court which decided the dispute in favour of the Ram Janmabhoomi has already reduced the workload of the Apex to a significant extent by performing the most burdensome and strenuous task of exercises in such disputes, namely identifying the specific issues of disagreement between the parties, receiving and examining evidence, including archaeological and historical, and fractionating the principles of law which apply to the case beforehand.
Putting plausibly, the legal silhouettes of the dispute have already been cleared out in sufficient detail by the honourable Allahabad High Court. Therefore, the Supreme Court need not reinvent the wheel and go through the process of the trial once again but has to primarily examine the High Court’s verdict for patent perversity, or gross misappreciation or non-appreciation of material evidence.
Given this limited mandate, and given the fact that all procedural formalities in the Supreme Court were nearly complete in December 2017 when the case was ripe for final arguments, there was little left to do except to commence hearings in the matter.
And then the red- herring of Ismail Faruqui v. Union of India, AIR 1995 SC 605 A, was raised by one of the parties to the case. This red- herring too was addressed in September 2018, when a three-judge Bench led by the then Honourable Chief Justice of India, J. Dipak Mishra, concluded that there was no need to refer the matter to a constitution bench since it held that Ismail Faruqui did not come in the way of adjudication of the title dispute. Therefore, as of September 2018, there were no further procedural or substantive hurdles left to the commencement of fresh hearings in the case.
Despite having arrived at the conclusion that there was no need to refer the case to a larger bench, the court then constituted a larger bench. Once again, the matter was ripe for final arguments. Now, it has been referred to mediation. Notwithstanding the hedonistic interests of some sections of the so-called Liberals at mollifying the nature of the dispute and what it represents substantially, it would be ignorant and offensive to deny that the dispute revolves around faith and dignity of faith for all the parties involved matter equally.
Keeping everything under due consideration, therefore, as self-serving as it may be, as an ardent believer in justice delivery through constitutional means, especially through courts of law, one sincerely hopes that the Apex Court does not let go of this opportunity to open a new chapter in the history of the Indian Republic by deciding the dispute one way or the other with expedition and put an end to this long- age tussle that has been one of the many reasons behind several communal discords throughout the history of India.
*Vishal Kumar is a student of Law at Campus Law Centre, University of Delhi.