On March 8, 2019, a Constitution Bench of the Supreme Court led by the Chief Justice of India directed that the batch of appeals in the Ramjanmabhoomi-Babri Masjid dispute be sent to a three-member mediation panel to explore the possibility of an amicable resolution.
The panel shall be headed by a former judge of the Supreme Court, Justice Fakkir Mohamed Ibrahim Kalifulla, with spiritual and humanitarian leader Sri Sri Ravi Shankar and senior advocate Sriram Panchu its other members.
The mediation proceedings, to be held in Faizabad, are expected to commence by March 15, 2019 and the panel has been directed to send a report of the progress of the mediation within four weeks from that date. It is interesting to note that the order directing mediation in the matter also records the objections raised by the litigants to the legality of a mediation in a case which is representative in nature i.e. a case whose outcome affects not just the litigants but also those who the litigants claim to represent. This objection, perhaps, captures the essence of the "dispute."
While legally the dispute is in the nature of a conventional title dispute, nothing about the case is conventional. The case is a veritable crucible where history, religion, politics and law meet, and in the absence of a formal institutionalised mechanism in this country for truth and reconciliation, it falls upon courts of law to determine the truth and dispense justice.
And yet, the Supreme Court has directed mediation in a dispute which has a recorded legal history of 164 years at the very least and has been pending before the Supreme Court since 2010. Ironically, the Court’s approach in this case is in stark contrast to its approach to intervening in religious practices and traditions which have been preserved by communities and institutions for centuries, the Sabarimala judgment being a case in point.
Further, given the tumultuous history of the Ayodhya dispute and the deep fissures it has caused and continues to cause because it is yet to be put to bed, it would not be out of place to assume that there is an unbridgeable chasm between the litigating parties which too is perhaps representative in nature. This means that to hope for an amicable resolution of the dispute through mediation is at best judicial optimism at work — which may not yield much particularly when this is not the first attempt at mediation in the dispute.
In this case, it is only proper that the issue be decided objectively by the highest court of the land on the rigorous anvils of evidence and civilised jurisprudence so that neither party can play victim and claim that it was shortchanged either by majoritarian coercion or minority appeasement, as the case may be.
After all, this is the very reason that people repose faith in courts because they believe, and rightly so, that the institution which dispenses justice is duty-bound to approach a dispute in the most objective, fair, reasonable and expeditious manner possible, uninfluenced by any other consideration.
Simply put, in modern India, a country with a complex history, a court of law is perhaps the best forum to resolve such disputes which come with the heavy baggage of history instead of these issues being resolved elsewhere through unconstitutional means.
Importantly, the use of “such disputes” in the plural is not inaccurate since Ayodhya represents the beginning of a long-due process in addressing one of the root causes of communal discord which keeps rearing its head with alarming periodicity. The continued attempts by vested interests to brush history under the carpet to keep their hearths burning at the expense of communal harmony and social integration is all the more reason to expedite the resolution of such disputes through a neutral forum in which all parties firmly repose their faith.
Viewed from a practical standpoint, the 4,300-page 2:1 verdict of the three-judge Bench of the Allahabad High Court which decided the dispute in favour of the Ramjanmabhoomi has already reduced the workload of the Supreme Court to a significant extent by performing the most onerous and arduous of exercises in such disputes, namely identifying the specific issues of disagreement between the parties, receiving and examining evidence, including archaeological and historical, and distilling the principles of law which apply to the case.
In other words, the legal contours of the dispute have already been fleshed out in sufficient detail by the high court. Therefore, the Supreme Court need not reinvent the wheel and go through the rigmarole of trial, but has to primarily examine the high court’s judgement for patent perversity, or gross misappreciation or non-appreciation of material evidence. Clearly, the Supreme Court has to only evaluate a well-prepared and digested brief authored by the high court. Given this limited mandate, and given the fact that all procedural formalities in the Supreme Court were nearly complete in December 2017 when the case was ripe for final arguments, there was little left to do except to commence hearings in the matter.
And then the red-herring of Ismail Faruqui v. Union of India was raised by one of the parties to the case. This red-herring too was addressed in September 2018, when a three-judge Bench led by then Chief Justice of India Dipak Mishra, concluded that there was no need to refer the matter to a constitution bench since it held that Ismail Faruqui did not come in the way of adjudication of the title dispute. Therefore, as of September 2018, there were no further procedural or substantive hurdles left to the commencement of hearings in the case.
Despite having arrived at the conclusion that there was no need to refer the case to a larger bench, the court then constituted a larger bench. Once again, the matter was ripe for final arguments. Now, it has been referred to mediation.
Notwithstanding the yellow-bellied attempts of some sections of so-called intelligentsia at sugar-coating the nature of the dispute and what it represents, it would be ignorant and offensive to deny that the dispute revolves around faith and dignity of faith for all parties involved, regardless of their faith. And since faith is the lifeblood of India according to Swami Vivekananda, delay in dispensation of justice in matters of faith is verily its denial.
Therefore, as self-serving as it may be, as an ardent believer in justice delivery through constitutional means, especially through courts of law, one sincerely hopes that the Supreme Court does not let go of this opportunity to open a new chapter in the history of the Indian republic by deciding the dispute one way or the other with expedition.
J Sai Deepak is an engineer-turned-litigator who practises in the Supreme Court and the Delhi High Court
The Great Diwali Discount!
Unlock 75% more savings this festive season. Get Moneycontrol Pro for a year for Rs 289 only.
Coupon code: DIWALI. Offer valid till 10th November, 2019 .