The Supreme Court on Friday sent the Ayodhya-Babri Masjid dispute to mediation, opening a new chapter in the legal proceedings that have gone on for over seven decades. The dispute took a violent turn in December 1992, when Hindutva mobs backed by the Rashtriya Swayamsevak Sangh, the Vishwa Hindu Parishad and the Bharatiya Janata Party tore down the mosque. What happened in 1992 can be seen as a culmination of a continuing saga of injustice in the case of the disputed site as the Babri Masjid was forcefully taken over and an idol of the infant Lord Ram installed inside in 1949.
The very fact that the Supreme Court has sought a mediation process is an explicit acceptance of the position that the case can no longer be judged merely as a land title dispute over 2.77 acres on which the mosque stood. As Justice SA Bobde made it clear during the proceedings earlier this week, the dispute is also about “religious sentiments”. “We know its impact on public sentiment, on body politic. We are looking at minds, hearts and healing if possible,” Justice Bobde observed.
However, this same religious sentiment is what is going to be the primary and the most important hurdle to the process of mediation. When it is said that the mediation would look for a middle-ground, it would essentially involve give and take on both sides. This compromise has to involve crucial questions of faith. Will the Muslim side concede that the spot on which the mosque stood is indeed the birthplace of Ram or Ram janmasthan? Will the Muslim side give up its claim on the land if it is not in a place to accept this position? Will the Hindu side compromise on the birth place of Ram, having argued all this while that this belief is central to the Hindu faith itself?
The process of mediation is essentially a tool to arrive at a consensus over civil disputes. In legal terms, this is called a “compromise decree” as defined under Order 23 Rule 3 of the Civil Procedure Code. The rule reads thus:
“Compromise of suit: Where it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, in writing and signed by the parties or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded and shall pass a decree in accordance therewith so far as it relates to the parties to the suit, whether or not “the subject-matter of the agreement, compromise or satisfaction is the same as the subject matter of the suit.”
This provision provides the space for mediation in a dispute like the Ayodhya case, in which the fundamental question is that of a title suit but it also involves complex equations that need to be considered to arrive at a solution.
On Friday, the court appointed former Supreme Court judge Fakkir Mohamed Ibrahim Kalifulla as the chairman of the mediation committee, with spiritual leader Ravishankar and mediation expert and senior lawyer Sriram Panchu as its members.
The court has given the panel eight weeks to complete the process. It is also expected to file an interim report in four weeks and has been given the authority to expand the panel if necessary. The Uttar Pradesh government will provide all facilities for the panel to undertake the mediation in Faizabad.
If the parties to the dispute reach a compromise, this will be submitted to the five-judge bench of the Supreme Court, which will then issue a decree to enforce it. In such matters where an alternative dispute resolution process is used, the mediator has the leeway to adopt innovative methods to help the parties reach a compromise.
The question, however, is if mediation is a good method for a highly-charged dispute that involves a great degree of politics.
Supreme Court and mediation
While this is the first time that the Supreme Court has formally referred the Ayodhya dispute to mediation, the idea of reaching a compromise is not new. In 2017, the Chief Justice JS Khehar expressed the same sentiment that Justice Bobde did this week, calling for a consensus as the dispute involves sentiments of the people.
On March 21, 2017, Justice Khehar observed: “Give a bit, take a bit. Make an effort to sort it out. There 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.”
It has taken two years for the court to move forward on this proposition. At various stages, the petitioners had taken different positions on the question of mediation. During the proceedings in the Allahabad High Court, the Muslim side had opposed mediation. Now before the Supreme Court, section of the Hindu side, especially the lawyers representing the deity Ram Lalla, was unwilling to accept a mediation process.
Outside the court, there have been political attempts by three prime ministers – Chandra Shekhar in 1990, Narasimha Rao in 1992 and AB Vajpayee in 2003 – to hold a mediation process. All attempts failed as the parties were unable to reconcile on certain fundamental points. There was also the larger question: Is the mediation process inherently stacked against the minority Muslim side, given the larger pressure involved?
Ram janmabhoomi and politics
One of the strategies of the Hindu side, especially of political organisations like the RSS, VHP and BJP, has been to expand the scope of the title suits and make it a dispute of faith. In this process, the basic point of legal right to the land becomes obfuscated and provides them an opportunity to justify what was a rank criminal act: the demolition of the Babri Masjid.
The foundation of this argument of sentiment is the claim that the spot on which the mosque stood was the birthplace of Ram. A supplementary strategy is the claim that a temple once stood on the place where the mosque was built by Mughal emperor Babur in the 16th century. The archaeological evidence for such a structure is highly disputed if not non-existent.
This position that the case involved sentiment and religious faith and not just legal questions of title was entrenched in the verdict of the Allahabad High Court in 2010, when it divided the disputed land between the Hindus and Muslims. This was a totally uncalled for partition. None of the parties to the suit sought such a division of the land, something that the Supreme Court conceded by calling the judgement a “strange order” when it began hearing the appeals in 2011. However, the Supreme Court, while it stayed the operation of the High Court judgement, allowed the prayers at the makeshift Ram temple at the disputed site to continue.
In context where one side wants the matter to be treated as a question of faith, could mediation work? On Wednesday, when the question of mediation came up, CS Vydhyanathan, the counsel appearing for Ram Lalla, made it clear that the position that the land was Ram Janmasthan or the birthplace of Ram cannot be conceded and that the Hindu side will crowd fund a mosque at an alternate site. In such a situation, is the proposed mediation really a mediation between equal parties?
The fundamental question that is likely come up before the mediation committee is this: Should the Muslim side, the victim of a criminal act that brought the mosque down, be persuaded to concede without any scientific basis that the spot on which the Babri Masjid stood was the birthplace of Ram? Will the Hindu side proceed without this concession? And if this position is conceded, can the Muslim side sustain its claim over the land?
While it is commendable that the Supreme Court is looking for an amicable solution to the dispute, this amicable solution should have come directly from the court by enforcing its authority, which is basically the enforcement of the rule of law.
Though the mediation is court monitored, the larger political situation in the country is hardly conducive to a mediation of this kind. On the one hand, the BJP, which is the ruling party at the Centre, has made it clear that it wants a temple at the disputed site. There have been calls for an ordinance to build the temple at Ayodhya. This is an explicit position against the Muslim claim and creates a disproportionate pressure on the Muslim side to concede. Given the threat of an ordinance, the political position of the Hindu side is that there will be a temple at the disputed site irrespective of the outcome of the legal dispute as this is a matter of faith.
If it is conceded that the matter is also one of faith and not just of land title, then a crucial question on representation comes in. Can parties to a title suit become the representatives of two communities in a dispute that involves religious sentiments, which are both communal and personal in nature? Can a decision arising out of such a mediation be acceptable to millions?
A counter to this position would be that the same doubts over representation would exist even if it is a direct decree from the court without mediation. This is exactly why the matter should be confined to the question of a title suit without being expanded to the question of faith. If it is a title suit, legally the cases are well represented. If not, the representation will be inadequate as mediating the faith of millions would be impossible.
The intriguing reluctance of the court to directly deal with the case purely on the question of the land title has led to a process in which one side faces the prospect of a disadvantageous position given the larger political context. The hope here is that the court is aware of this context and would ensure that the Muslim side is not put under undue pressure.