Mediation is the best option that should be resorted to in any litigation. When M K Gandhi went to South Africa, his client Abdulla Sheth, who had taken him there, asked him to avoid familiarity with his adversary. Gandhi replied, “But I do intend cultivating the acquaintance of the other party. I should like to be friends with them. I would try, if possible, to settle the case out of court. After all Tyeb Sheth is a relative of yours.” Abraham Lincoln said, “Discourage litigation. Persuade your neighbours to compromise wherever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be business enough.”
Mediation or conciliation is, doubtless, laudable, but it cannot be used as an escape mechanism by the court to avoid hard cases. After many deferments due to recusal of judges and other reasons, a five-judge constitution bench of the Supreme Court, in its first major order, referred the Ram Janmabhoomi-Babri Masjid dispute to a three-member panel for mediation. The intention of the court may be noble but recourse to mediation is taken at the initial stage, not at an advanced stage when the issue has become almost intractable. Besides, the apex court has taken a somersault. Then Chief Justice of India Dipak Misra had made it clear that it is only a title suit for the court. But now the court is of the view that it is not only that; it is an issue of faith. Views change with the change of judge! Justice is so subjective!
There have been attempts at mediation in the past but all this came a cropper. The last attempt was made by then CJI J S Khehar, who entertained Subramanian Swamy’s prayer for early hearing and then on March 21, 2017, asked the parties to go in for mediation, “Given the sensitivity attached to the issues in question, it is best to settle the differences through negotiations between parties. All must adopt a give a bit and take a bit’ approach to find a solution to this issue.” He offered to mediate himself and also to provide a brother judge for facilitating negotiating process. Later, Sri Sri Ravi Shankar and Shia Waqf Board chairman Waseem Razmi made efforts in this direction but everything came to a naught.
Actually, the ulcer was allowed to fester into cancer. Now it defies solution. The litigation pertaining to disputed structure at Ayodhya as to whether it was the Ram Mandir or the Babri Masjid that existed earlier at that place is almost seven decades old and is a textbook example of how some suits continue interminably. In 1949, some primitive images of Hindu deities mysteriously appeared in the unused mosque. It triggered a huge controversy leading to communal frenzy. The matter went to the court for the first time on January 13, 1950, when Gopal Singh Visharad filed a suit in the Faizabad district court. In 1955, the Allahabad High Court bemoaned that a decision was still awaited even after passage of four years. The second suit was filed by the Nirmohi Akhada in 1959, the third by the Sunni Central Board in 1961, and the fourth one was filed in 1989 on behalf of Ramlala (infant Lord Rama) by Justice Devkinandan Agrawal.
All suits were clubbed together and called before the Lucknow Bench of the Allahabad High Court in the representative capacity. The litigation kept hanging fire and after many political convulsions that it touched off, the disputed structure was pulled down allegedly by obscurantist Hindu activists on December 6, 1992, which triggered large-scale communal riots. Ultimately, on September 30, 2010, a three-judge bench of the High Court delivered its verdict ruling that the 2.77 acres (1.12 hectares) of the land be divided into three parts, with 1/3rd going to the Ramalala represented by the Hindu Mahasabha for the construction of the Rama temple, 1/3rd going to the Islamic Sunni Waqf Board, and remaining 1/3rd going to the Hindu religious denomination, Nirmohi Akhara.
While the bench was sharply divided over the issue whether the disputed structure was erected after demolishing a temple, it was unanimous as to the finding that a temple or a temple structure predated the mosque at the same site. The court heavily relied upon the reports of the Archaeological Survey of India (ASI), which carried out excavations that the predating structure was a massive Hindu religious building. Ironically, the decision came seven long years after the ASI excavated the site in 2003 on the direction of the Lucknow Bench of the Allahabad High Court. Excavations were carried out earlier also, but surprisingly, the court could not take any advantage out of it. The Banaras Hindu University was the first to excavate the site in 1967. Many other excavations were made subsequently which yielded telling results but these were shelved.
Anyway, the High Court did decide it after a long procrastination but it was dubbed as ‘panchayati.’ The Supreme Court was asked to redress it but it seems it does not want to wade into troubled waters. It was clear when, in 1994, it returned the reference made by the President under Article 143 of the Constitution to give its opinion whether a temple was in existence at the site in Ayodhya where the Babri Masjid stood later on. Majority of three judges held that the reference was not an effective ‘alternate dispute settlement mechanism.’ So, it could not be permitted to substitute for the pending suits and legal proceedings. The court felt that the reference had become ‘superfluous and unnecessary.’ The two judges (in minority) opined that the court could decline to answer a reference but then it must give reasons for doing so.
The grounds given by the court for declining to answer the reference were that it favoured one religious community over another, the Union government did not propose to resolve the dispute according to the court’s opinion, and rather wanted to use it as a springboard for negotiations, the main protagonists on both sides of the dispute had not appeared before the court to lead evidence or for cross-examination, and finally, the process would invite criticism from either or both sides.
The reasoning adduced by the court for returning the reference is baffling. It cannot fight shy of adjudicating a case because it would go in favour of one community. Law is no respecter of any person or community. Besides, it was scared of criticism though court’s shoulders are considered broad enough to brave out even the most searing criticism. What was most surprising is that it did so after obtaining an undertaking from the Union government that it (government) shall abide by the opinion of the court though the opinion given under Presidential reference is not binding per se. The same argument has been bandied about now.
There is no guarantee that the mediation will succeed. And who will implement its award? What if it fails? The court must decide strictly on the basis of law. However, it is true that enforcing its judgment will be a real challenge if it is finally decided. The court got a bitter taste in Sabarimala. Still judgments have to be accepted nolens volens.