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Saturday, February 27, 2021

‘Mediation’ in Ayodhya title suit: Routine idea that has got new SC push

The Bench asked for the option of mediation to be explored after hour-long arguments in the court on Tuesday. It said it would pass orders on its suggestion for mediation on March 5.

Written by Seema Chishti | New Delhi |
Updated: March 6, 2019 11:50:31 am
The Babri Masjid was demolished by kar sevaks. (Express Archive)

On Tuesday, the five-judge Constitution Bench of the Supreme Court hearing the Ayodhya title dispute deferred hearings to March 5, giving the parties a week to explore the possibility of settling the matter through an in-camera, court-monitored process of mediation that 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, are Justice D Y Chandrachud, Justice Ashok Bhushan, and Justice 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.

The ‘Muslim’ parties told the Bench they were as such not opposed to the suggestion of a mediated settlement. Among the ‘Hindu’ parties, counsel for Ramlalla Virajman and Mahant Suresh Das opposed the proposal, saying mediation had been attempted in the past, and had not succeeded. The Nirmohi Akhara backed the suggestion.

The Bench asked for the option of mediation to be explored after hour-long arguments in the court on Tuesday. It said it would pass orders on its suggestion for mediation on March 5.

Under Section 89 of the Civil Procedure Code, judges must ensure that all avenues to resolve a dispute outside the Court have been exhausted. It 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.

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, tried mediation. All lawyers were called into the chamber and asked whether they wanted to reconcile. The process collapsed — apparently after the ‘Hindu’ side said it was not acceptable.

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.

Swamy said he had approached members of the Muslim community who had, however, said that judicial intervention was required to resolve the matter. The Bench asked Swamy to consult the parties and inform it about the decision on March 31. “All of you may sit together and hold a cordial meeting.”

This attempt by the court at coaxing the parties into negotiating a settlement was, however, not formal, and did not go anywhere. 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.”

Before the demolition of the Babri Masjid in December 1992, 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 Narasinha Rao. The demolition put paid to all that.

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

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