india

Updated: Mar 06, 2019 23:13 IST

The Supreme Court on Wednesday reserved its order on whether the Ram Janmabhoomi-Babri Masjid title suit would be referred for mediation and asked the parties to name the best possible mediators to resolve one of India’s most politically and religiously sensitive issues.

Hindu parties — except the Nirmohi Akhara, a religious denomination — and the Uttar Pradesh government opposed mediation, but the Muslim petitioners backed the idea.

The five-judge Constitution Bench led by Chief Justice of India (CJI) Ranjan Gogoi, and comprising justices SA Bobde, DY Chandrachud, Ashok Bhushan and SA Nazeer, also told the lawyers not to argue on history as the court had no control over it. “Don’t tell us history. We have also read history. Do not tell us what we already know. We have no control over what happened in the past, of [Mughal emperor] Babur... We have no control over the past. We can only undo the present, which is the dispute before us,” said justice Bobde. He was referring to a belief among many Hindus that Babur demolished a Hindu temple to construct the Babri Masjid on the site in the 16th century.

If mediation is ordered, the court said it would ensure that confidentiality is maintained by both sides and that the process is not reported in the media or commented upon while it is underway. The court clarified that it did not want to gag the media but to consider delaying the publication of the deliberations.

The apex court is hearing 14 appeals against a September 2010 Allahabad high court verdict that ordered a trifurcation of the disputed 2.77-acre site between the Nirmohi Akhara, the Sunni Central Wakf Board and Ram Lalla Virajman, the child deity.

With this summer’s general elections merely months away, the case has assumed immense political significance, especially in Uttar Pradesh which sends 80 members to the Lok Sabha. If the court orders mediation in the case, it would likely mean that the suit would be resolved after the polls.

In an earlier hearing on February 26, the apex court suggested that even if there was a 1% chance of an amicable resolution, mediation should be given a chance, adding that it was considering a possibility of “healing relationships”.

The bench said it is exploring the option of mediation under section 89 of the Civil Procedure Code (CPC), which permits the court to refer a dispute to an arbitration or conciliation process with the aim of reaching an amicable settlement.

Justice Chandrachud wondered whether mediation was possible in this case. “This is not a dispute between just two parties but a wider dispute between two communities. Even if we go through mediation, how would it be binding on all,” he said, expressing doubts over the binding nature of such mediation.

Solicitor general Tushar Mehta, who appeared for the Uttar Pradesh government, said mediation should be ordered by the court if there exists an element of settlement. Considering the facts of the case, nature of dispute and possible fallout, it’s not advisable or prudent to undertake this path, the law officer said.

The lawyer for the Hindu Mahasabha said mediation was not possible in such a dispute and even if the court wanted to explore any such mechanism, it would have to issue a public notice inviting suggestions from the public. “Hindus are not ready for any mediation. It’s the deity’s property and nobody has the right to mediate. For us, it’s a sentimental issue. Do not refer the matter to mediation. We are waiting for outcome of result since 1950,” the lawyer told the court.

Justice Bobde told the lawyer he was pre-judging the issue and calling mediation a failure even before it is attempted. The judge said such a presumption was unfair on the lawyer’s part. “We think the primary dispute is not just over the 1,500 yards of land. This is about sentiment or faith and we are conscious about it. Do you think you have more faith than us?” the judge asked.

“We are conscious of the body politic of this country. It’s about minds, hearts and healing, if possible, and we do not really understand how it is being rejected even before it is attempted,” justice Bobde added.

Senior counsel CS Vaidyanathan, appearing for Ram Lalla, said mediation efforts would not succeed. “These are matters of faith and non-justiciable. It is on record that Ayodhya is Ramjanmabhoomi but which is the janmasthan [birthplace] is a matter of faith and belief. This matter is non-negotiable. Nobody can possibly agree to some other place being the janmabhoomi. The only thing that can be done is find an alternative place for a mosque. We are willing to crowd-fund it,” he submitted. Justice Bobde told him that he could raise the point during mediation.

Senior advocate Rajeev Dhavan, appearing for one of the Muslim parties, said he favoured the proposal for mediation. He even agreed with the court’s concern that there should be no reporting of the mediation talks until the process ends.

Justice Chandrachud, though, underlined the need for and importance of a negotiated settlement, and said mediation was a possibility only when there were two defined parties but not in a representative suit. “Once a suit assumes a representative character, there cannot be any compromise to the suit,” the judge said. But Dhavan countered his proposition and said his argument overlooked the fact that there was a procedure under the law which binds the court to explore mediation, for which consent of both parties is not required.

Dhavan also said that if mediation results in a compromise, the same can always be binding once the court includes it in the judicial order.

Bharatiya Janata Party (BJP) leader Subramanian Swamy told the court that the disputed land belonged to the government. “[Former Prime Minister] PV Narasimha Rao government had in 1994 made a commitment to the apex court that if ever found that there was a temple, land will be given for temple construction,” said Swamy.

Apart from the 14 appeals challenging the Allahabad high court order, the bench is also considering an application by the Union government seeking permission to return 67.7 acres of land around the disputed compound, except 0.313 acres on which the disputed structure stood, to its original owners. The 67.7 acres were acquired by the government under a 1993 law, and according to the Centre, 42 acres of that land belongs to the Ram Janmabhoomi Nyas, a trust formed to promote the construction of a Ram temple in Ayodhya.

(with agency inputs