The Supreme Court’s attempt at mediation has its share of supporters and critics

The Supreme Court has opted for a time-bound mediation process in a bid to resolve the Ayodhya dispute. Sukumar Muralidharan and Sanjay Hegde debate whether mediation is necessary at this stage, and if the process is viable, in a discussion moderated by K. Venkataramanan. Excerpts:

Is mediation viable at this stage of the litigation, when the Supreme Court is set to begin the final hearing in the Ayodhya dispute? Is it advisable and desirable?

Sukumar Muralidharan: I think the Supreme Court has stepped in as a problem-solver at numerous stages of this dispute over the years. And sometimes it has declined to play that role — instances being as far back as in 1989, when it was asked to put a stop to the Shila Pujans that were going on all over the country and causing a lot of communal violence, and it declined to do so; and then again in 1992, when it was asked to ensure the safety of the structure when the Vishva Hindu Parishad was planning its kar seva on December 6, 1992. Of course, it did issue a writ and asked for guarantees to the safety of the structure. The rest is history. Then, the reference was made to determine whether there was a Hindu religious structure under the mosque prior to the mosque being built. The Supreme Court declined to hear it but held that the acquisition of the land was good in law. And that a mosque was not part of essential religious practice for the Islamic faith and, hence, there was no violation of religious freedom in the acquisition of that land. It then reverted the case to the Lucknow Bench for a determination of the title suit. So, that’s what we had coming out in 2010. This mediation decision comes out of an appeal against the Lucknow Bench’s decision. So, I think this fits in with the normal course of adjudication in the matter. The mediation decision is the court, in a manner of speaking, abdicating its responsibility.

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Sanjay Hegde: Any court always has the option of asking parties to mediate before it proceeds to adjudicate. That is laid down in the Civil Procedure Code. This is a kind of case where even if there is adjudication, the court is not particularly sure as to whether its verdict would be honoured if it is unpopular on one side or the other. However, the court decided to be proactive, not in the sense of abdicating its jurisdiction, but is aware now that mediation itself is a specialised process. It is not exactly in the sense of a negotiating or bargaining kind of situation. Mediation is something much deeper and the court wants to see whether that process with the trained mediator plus two others who are of repute within the community, both legally as well as in terms of a broader religious appeal... they’ve tried to get some kind of representational team together. And see where the process goes.

There is a small window of eight weeks for mediation. Would it have been better if the mediation process was given more time, or if it was open-ended so that there could be a more viable process?

S.H.: If you give too much time, nothing really happens. So, having a deadline also concentrates parties’ minds wonderfully, inasmuch as there is time pressure to arrive at a solution.

S.M.: My worry is that the court has opted for a deadline that just puts it over the threshold of the electoral cycle, so that it does not get affected by the heat and dust of the election campaign. Now, it may be prudent to have done this, but I don’t see that the court should really be allowing this political scenario to impinge upon its decision. Now, once the mediation begins, who will the mediators involve in the process? There are a number of litigants involved. The original litigants are the Nirmohi Akhara, the Wakf Board, and there is Ram Lalla, the deity. But the VHP is creating trouble on the streets, and they have become, by virtue of their coercive politics, litigants in the problem. So, who are going to be part of the mediation? It’s going to be a tricky process because whoever is left out of the mediation process can move out to the streets with their grievance, and whip up public fury.

The suits are representative in nature with the two communities on either side of the dispute. It is said it will be difficult to enforce a decree of the court, if one party expresses misgivings and the other party is happy about it. Does this not apply to the mediation process also?

S.H.: A negotiated settlement will also ultimately end up in a decree of the court. What will happen on the enforcement of the decree is another question. Right now, we are wondering whether the decree can be arrived at by consensus among the parties to the litigation, or whether the decree has to be arrived at only through the adjudicatory route.

Do you agree with the basic formulation — that this is a matter concerning faith and not merely the civil rights of the respective parties?

S.M.: There’s so much of politics riding on this. They [the Muslim parties] say they are willing to cede the land if it is proven that it was taken by fraud or by force from the other side. And the other side is arguing, ‘No, it is a matter of faith, and we cannot negotiate, or have a judicial determination on a matter of faith.’ I don’t see any reason why they will retreat from that really hard-line position now, without risk of loss of face, since it has become such a high-stakes issue politically. The judiciary could have just proceeded to take the bull by the horn, rather than bring in the question of faith and the emotion.

Do you get the sense that the legal issues are secondary?

S.H.: Politically, it has always been framed like that. How does the judiciary handle it? The judiciary could have well said, ‘Look there are no manageable standards,’ and declined to get into the dispute altogether. Or, it could have said, ‘We have no space for faith and belief out here. Let us go simply by the law as laid down.’ The mosque has stood there for nearly 500 years, and we all saw this go down in 1992. How does, in the face of all that evidence, one side prove title?

There are two basic emotions out here. One emotion on the Hindu side is, ‘We have suffered religious hurt and we have lived with it through 500 years. This may not be a Hindu state, but it is a Hindu majority country. The wishes of the majority on this thing must prevail.’ On the Muslim side, it is this emotion that, ‘Look, we are not intruders. These are things that have happened so many years ago.’ These underlying emotions, if the multi-faith mediation team could address somewhere, and get people to understand that irrespective of faith, irrespective of the past... this country needs to move on ahead.

It is argued that for Hindus it is a matter of faith as far as the spot is concerned, whereas the right of worship of Muslims can be exercised anywhere. The idea behind the mediation seems to be to get the Muslim side to give up their claim over the site, and instead have a mosque elsewhere. Against this backdrop, it is interesting that the Sunni Wakf Board and the All India Muslim Personal Law Board were open to the idea of mediation, whereas the three Hindu parties were not in favour of it.

S.H.: You are right that the Muslim side in a way perceives itself to be the weaker side, and it had always said whatever the court orders, it will abide by it. The thing on the Hindu side is that after all this is god’s property. There is almost a sense of crusade out there and we cannot give up anything, having started the fight in god’s name. At the end of the day, Hindus and Muslims are all part of India.

S.M.: We should avoid any impression that the institutions of our governance process are skewing the whole balance in favour of favour of majoritarian coercive politics. Because, I think the people of the minority faith have a sense of grievance that they have not been given a fair deal in this process. In fact, even the ruling that the acquisition of land was legitimate because the place of worship is not an essential part of the religious faith of Muslims — that also has caused some disquiet... but now they’re even being restrained from even offering prayers in public places.

Would you like to comment on the choice of the mediators?

S.H.: Well, about two choices nobody has any doubts: Sriram Panchu and Justice Kalifulla. The question is about Sri Sri Ravi Shankar. The point is that you needed somebody on the Hindu side who could possibly sell a settlement to the larger Hindu community. Therefore it did make sense to bring in a holy man. But why this particular godman? That is a choice left to individual judges who can constitute the Bench.

S.M.: Well, he’s on record saying Muslims should give up their claim to the title of the land and also threatening dire consequences if that does not happen. So, that gives him not exactly the best claim to being a fair mediator to this process. So before the task of achieving a mediated outcome between the different litigants to this process, I think the mediators have to achieve consensus amongst themselves about how they’re going to approach this. And given the composition of this team, I think that is not a trivial challenge.

What do you think will be the larger implications for constitutional values like the rule of law and secularism, when this litigation reaches either an adjudicated or negotiated settlement?

S.H.: Quite frankly, I think we, as a democracy, gave up our belief in the rule of law on December 6, 1992. What we are trying to do is to snatch back whatever remains; to rebuild it, because ultimately, let me put it this way and this is my question to even those who propound a Hindu Rashtra: Even a Hindu Rashtra can’t work without the rule of law. And if you do something which is out of the law, and then you try to retrospectively make it right, it just doesn’t work.

S.M.: That is the key question going forward. Because once you have destroyed the faith that people of different religious convictions might have in the neutrality of the governance process, it is very difficult to retrieve that. Over the last 30 years, the balance has shifted too far in favour of majoritarian assertion and we’ve allowed a number of political campaigns to ride on this issue, which should have been settled right at the moment it was born. That default over 30 years has allowed this issue to become a political matter on which very emotive campaigns were mounted by both sides. The damage has been very deep and it’ll be very lasting unless we sort things out very quickly.