Expecting SC-appointed mediation panel to speedily resolve Ayodhya dispute is naive; cracks already showing

The Supreme Court on 8 March ordered the Ram Janmabhoomi-Babri Masjid dispute to be decided by a court-monitored mediation team. As directed by the apex court, the mediation was to be completed within eight months and the first report to be submitted within four weeks. Former Supreme Court judge FM Kalifulla, Sri Sri Ravi Shankar and senior advocate and mediator Sriram Panchu constituted the three-team mediation panel.

Ever since the apex court decided in favour of mediation to resolve one of India's oldest and most-aggressively fought cases, there has been an open debate about the viability of this option.

File image of the Supreme Court of India. PTI

On Monday, Nirmohi Akhara, one of the original parties in the case moved the Supreme Court with a plea that sought that the place of mediation (Faizabad) should be changed to a more ‘neutral’ location and also asked to bring in two retired Supreme Court judges on the panel.

While acknowledging the apex court decision to refer the case for mediation so that “an amicable solution is possible” and this can ensure that a “long-standing issue which has been a source of contention between two communities can be resolved” in the next breath Nirmohi Akhara also stressed that “amicable resolution would be possible only if there is a direct dialogue between UP Sunni Central Wakf Board and Panch Ramanandi Nirmohi Akhara Ayodhya who claim title to the properties, while keeping the faith and aspirations of all devotes.”

In its application, Akhara clearly said that while it favours dialogue it does not want any proposal to be given in writing. The Akhara also, while highlighting the fact that it has in past (especially in 2010 when the Allahabad High Court pronounced its judgment in the case), expressed willingness for mediation and following the apex court decision to refer the case for mediation participated in the deliberations of the mediation panel.

However, in the application, it stated that while it participated in the mediation proceedings that took on 13 March it felt that the “proceedings left a lot to be desired”, a clear reflection of the dissatisfaction over the mediation proceedings. Now, it is important to understand that when the beginning of mediation process is resulting in such dissatisfaction, it is hardly possible that panel can magically (within the eight-week deadline set up by the court) succeed in forging any consensus that can lead to any possible resolution.

Also, what can prove to be Achilles' heel in this entire process can be gauged from a careful reading of the section that empowers the court to refer a case for mediation. Code of Civil Procedure, 1908 embodies the legislative mandate to the court to refer sub judice disputes to various ADR mechanisms enunciated therein where it finds it appropriate to do so, in order to enable the parties to finally resolve their pending cases through well-established dispute resolution methods other than litigation.

Section 89 of the Code of Civil Procedure states: "Where it appears to the Court that there exist elements of a settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the Court may reformulate the terms of a possible settlement and refer the same for a) arbitration;b) conciliation;c) judicial settlement including settlement through Lok Adalat; or d) mediation.

Here “acceptable to the parties” broadly means willingness of the parties to actually look for an amicable settlement of the dispute. But it is important to understand that this ‘willingness’ is not only required for facilitating the court to decide whether the case should or should not be referred for mediation, rather this willingness for consensus has to exist and should guide the entire mediation process.

Anyone who is aware of the manner in which India’s biggest alternative dispute resolution (ADR) that is Lok Adalats works will understand that mediation or any of the ADR is good for statistics, better in theory and best for optics, but less effective when it comes to settling the long-fought cases marked by sheer mistrust and acrimony.

Every year National Lok Adalats are organised across the country and it makes news for statistics. In a country where the judicial system is under immense burden of pendency, resolving over million cases in a day calls for a celebration and also highlights the importance of ADR that includes mediation. But a close analysis of the cases resolved shows that majority of them include cases related to bounced cheques, bank recovery cases, motor accident claims and traffic challans, none of which requires rigorous interpretation of law and jurisprudence.

Also, in Lok Adalats it has been often observed that parties — often intimidated by the aura of the court — agree to a solution, but as soon as they come out of the court, the conflict resumes. And here is a case that concerns a title dispute, has a direct bearing on fundamental rights, and has been a very important case socially, culturally and politically. It has a significant sentimental value for two demographically most dominant communities of the sub-continent. So, to expect much from mediation will be naïve.

The mediation will have parties who are bound to govern more by subjective criterion than objective law. It was reflected in Allahabad High Court verdict of 2010, where leave aside the arguments made by parties, the judgment was criticised for its ‘panchayati’ tone. In this context, an important question is whether this mediation — which is seen by many parties as ‘legally sanctioned panchayat’ — can ensure a resolution that will honour the ‘law’ apart from ‘sentiments’ and in reasonable measure. Also, another important question is: As the mediation process has already started facing the cracks, will it survive its eight-week gestation?