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Wednesday, October 20, 2021

Ayodhya: Where idea of ‘negotiation’ originated, how ‘mediation’ has always failed

The Supreme Court will now begin, from August 6, daily hearings of the appeals against the verdict that the Allahabad High Court gave on September 30, 2010.

, Edited by Explained Desk | New Delhi |
Updated: August 3, 2019 5:43:23 pm
ayodhya dispute, ayodhya case, ayodhya mediation, ayodhya dispute hearing, ramjanmabhoomi babri masjid dispute, supreme court, ram mandir, ram temple, babri masjid, sc ayodhya, ram temple dispute, indian express news On February 26, at the end of about an hour of arguments in the Supreme Court on the appeals against the High Court order on the Ayodhya title dispute, the five-judge Constitution Bench deferred hearings by a week to March 5. (Photo: File)

The attempt at mediation and an amicable out-of-court settlement of the Ramjanmabhoomi-Babri Masjid dispute has failed. The Supreme Court will now begin, from August 6, daily hearings of the appeals against the verdict that the Allahabad High Court gave on September 30, 2010.

The High Court had ordered that the disputed 2.77 acres of land in Ayodhya should be divided equally among the three parties, the Nirmohi Akhara sect, the Sunni Central Wakf Board Uttar Pradesh, and Ramlalla Virajman.

Subsequently, 14 appeals were filed in the Supreme Court against the High Court judgment.

The attempt at mediation

On February 26, at the end of about an hour of arguments in the Supreme Court on the appeals against the High Court order on the Ayodhya title dispute, the five-judge Constitution Bench deferred hearings by a week to March 5.

The court asked the parties to use this time to explore the possibility of settling the dispute through an in-camera, court-monitored process of mediation. This, the court said, could pave the way for a “healing”.

“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 said.

“The mediation will be concurrent to the suits pending before the court. Mediation will be a confidential process too,” Justice Bobde added.

The other judges on the Constitution Bench, headed by Chief Justice of India Ranjan Gogoi, were Justice D Y Chandrachud, Justice Ashok Bhushan, and Justice S Abdul Nazeer.

On March 6, the Bench reserved its order on whether to refer the dispute for mediation, but underlined that its “whole idea” was to “look at minds, hearts and healing, if possible”.

Two days later, on March 8, the court sent the dispute for mediation.

It noted “the lack of consensus between the parties”, but insisted that “we are of the view that an attempt should be made to settle the dispute by mediation”. It asked a three-member panel headed by the retired Supreme Court judge Justice Fakkir Mohamed Ibrahim Kalifulla to complete the proceedings within eight weeks.

The other two people on the panel were spiritual guru Sri Sri Ravi Shankar and senior advocate Sriram Panchu. The mediation proceedings were to be held in-camera in Faizabad, Uttar Pradesh.

Early positions of the parties

During the proceedings in the Supreme Court, the ‘Muslim’ parties told the Bench that they were not, in principle, opposed to the idea of a mediated settlement of the dispute.

The ‘Hindu’ parties were not unanimous in their view. Counsel for Ramlalla Virajman and Mahant Suresh Das opposed the proposal for mediation. They argued that mediation had been attempted in the past, and had not succeeded. The Nirmohi Akhara backed the suggestion.

This was the starting point as the efforts at finding a negotiated settlement began.

Legal basis of negotiation

The suggestion of negotiation by the Supreme Court wasn’t in itself new. Negotiation or mediation is an accepted part of the procedure to resolve disputes. Section 89 of the Code of Civil Procedure asks judges to 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.

Even in the Ayodhya title suit, the three-judge Bench of the Lucknow Bench of Allahabad High Court had, after all arguments had concluded on August 3, 2010, attempted mediation. Counsel for all parties were called into the judges’ chamber and asked whether they wanted to reconcile. This process, however, collapsed — apparently after the ‘Hindu’ side said negotiation was not acceptable to it.

Earlier attempts at negotiation

Two years before setting up the Kalifulla panel, the Supreme Court had suggested that mediation might be a way forward in resolving the vexed Ramjanmabhoomi-Babri Masjid dispute.

After several parties appealed against the Allahabad High Court order, the Supreme Court, in March 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 Justice J S Khehar had 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 had said after BJP MP Subramanian Swamy sought an early hearing in the matter.

Swamy said he had approached members of the Muslim community who had said that judicial intervention was required to resolve the matter. The Supreme Court then asked Swamy to consult the parties and get back to it on March 31. “All of you may sit together and hold a cordial meeting,” the court said.

But this was only an informal attempt by the court at nudging the litigant parties towards the negotiating table. The attempt did not make progress. On March 31, the court declined to expedite hearing. CJI Khehar told Swamy: “You did not tell us that you were not a party to the case, we only got to know that from the press.”

Attempts even before 1992

Serious attempts at negotiations had, in fact, been made even before the Babri Masjid was razed by Hindutva activists on December 6, 1992. Talks were held and back channels were worked between the Vishwa Hindu Parishad, which was leading the Ramjanmabhoomi agitation, and the All India Muslim Personal Law Board.

These attempts at reaching a negotiated settlement were overseen by at least three Prime Ministers, but mostly Chandra Shekhar and P V Narasimha Rao. The demolition, however, put paid to all that.

The difference between these earlier attempts and the latest one that has just failed, however, is that none of the earlier moves were court-mandated or referred.

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