The Supreme Court on Wednesday reserved its order on the option of mediation in the Ayodhya title dispute. On February 26, the five-judge Constitution Bench had deferred hearings in order to give the parties time to explore the possibility of settling the matter through an in-camera, court-monitored mediation process.
“We are seriously thinking over giving mediation a try since the dispute is not about anybody’s private property. Even if there is 1 per cent chance of an amicable resolution, it should be given a try,” Justice S A Bobde had said. “The mediation will be concurrent to the suits pending before the court. Mediation will be a confidential process too,” he had said.
The ‘Muslim’ parties have told the Bench they are willing to participate in the process of mediation. But counsel for Ramlalla Virajman and Mahant Suresh Das have opposed the proposal, saying mediation had been attempted in the past and had not succeeded.
Mediation in Civil Procedure Code
Under Section 89 of the Civil Procedure Code, judges must ensure that all avenues to resolve a dispute outside the Court have been exhausted. The Section reads: “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 settlement and give them to the parties for their observations and after receiving the observations of the parties, the Court may reformulate the terms of a possible settlement and refer the same for (a) arbitration; (b) conciliation; (c) judicial settlement including settlement through Lok Adalat; or (d) mediation.”
The Constitution Bench, headed by Chief Justice of India Ranjan Gogoi, includes, apart from Justice Bobde, Justices D Y Chandrachud, Ashok Bhushan, and S Abdul Nazeer.
The Bench is hearing appeals against the Allahabad High Court verdict of September 30, 2010, which had ordered the disputed 2.77 acres of the Ram Janmabhoomi-Babri Masjid site to be split three ways among the Nirmohi Akhara sect, Sunni Central Wakf Board Uttar Pradesh, and Ramlalla Virajman.
Mediation attempt in High Court
The three-judge Bench of the Lucknow bench of Allahabad High Court, too, had tried mediation. After arguments concluded on August 3, 2010, the Bench had called all lawyers into the chamber and asked whether they wanted to reconcile. The process had collapsed apparently after the ‘Hindu’ side said it was not acceptable.
Suggestion by CJI J S Khehar
After several parties appealed the High Court order, the Supreme Court in 2017 described the Ayodhya dispute as a matter of “sentiments and religion”, and suggested that it would be best if the contentious issue was settled amicably.
“Give a bit, take a bit. Make an effort to sort it out. These are issues best decided jointly. these are issues of sentiments and religion. The court should come in the picture only if you cannot settle it. If the parties want me to sit with mediators chosen by both the sides for negotiations, I am ready to take up the task,” then Chief Justice of India J S Khehar said on March 21, 2017.
“You want me, I am ready to do it. You don’t want me, I won’t. If you want my brother judges, you can take them but first try to sit with each other and resolve it. After all, these are issues of sentiments. And if you want some principal mediator, we can arrange that,” Justice Khehar said after BJP MP Subramanian Swamy sought an early hearing in the matter.
This attempt by the court at coaxing the parties into negotiating a settlement was, however, not formal, and did not go anywhere.
Mediation attempts before demolition
Even before the demolition of the Babri Masjid in December 1992 in fact, there were serious attempts at talks and working back channels between the VHP and the All India Muslim Personal Law Board, overseen by at least three Prime Ministers, but mostly Chandra Shekhar and PV Narasimha Rao. But the demolition put paid to all that.
While the current attempt by the Supreme Court at mediation is not new, the difference between it and the earlier attempts is that none of the earlier moves were court-mandated or referred.