Challenges aplenty for Ayodhya mediators

Flavia Agnes
Women’s rights lawyer

A five-judge Constitution Bench headed by Chief Justice of India Ranjan Gogoi has referred the Ram Janmabhoomi-Babri Masjid land dispute for mediation by a panel headed by a retired Supreme Court judge, Justice FMI Kalifulla, to explore the possibility of an amicable settlement. Other members of the panel are spiritual guru Sri Sri Ravi Shankar and senior advocate Sriram Panchu. More members can be co-opted, if needed, the court has commented. A time frame of eight weeks has been given for the mediation to be completed; thereafter, a report on the outcome must be submitted to the apex court. 

The mediation is to be held in the Hindi heartland of Faizabad, where Hindu-Muslim tensions can easily be fuelled during the elections. In view of this, strict directions have been issued that the entire process should be confidential, and that there would be no media coverage of the proceedings. 

The court has expressed the view that a mediated solution is preferable to a litigated outcome. The Bench noted that mediation was necessitated as the court was mindful of the magnitude of the Ayodhya dispute and its repercussions on the national ‘body politic’. The court indicated that a pacific attempt must be made to heal the relationship between Hindu and Muslim communities. Experts in Alternative Dispute Resolution (ADR) have expressed the view that any negotiated settlement in this festering case will usher in a paradigmatic shift in the way inter-religious disputes could be resolved through non-litigious methods such as mediation/conciliation in future.

Some experts feel that any adversarial adjudication in the Ayodhya case, with a ‘win-lose’ kind of judicial pronouncement, will further escalate tensions between the two contending factions and may result in eruption of communal violence in the country. It will also provide a fertile ground for politicians on both sides of the religious divide to exploit religious sentiments and fuel further disruptions and defeat the constitutional goal of establishing a composite cultural ethos of ‘fraternity’ in society. It is interesting to note that a land dispute which has been lingering on since 1949 has now become an issue of religious faith which may impact the lives of a multitude of Indians. 

The parties involved in the case are aware of it and hence, it is heartening to note that the SC order of referring the matter to mediation has received a positive response by almost all major stakeholders. It appears that most (though not all) religious groups and leaders seem to be interested in finding a negotiated settlement to the dispute. 

But there are a few who have expressed the view that court-directed mediation will be a futile exercise as both parties, backed by their respective religious beliefs and groups, will never retreat from their hardened positions. 

The court’s reasoning to go for mediation is sound as it must exhaust all possible alternatives for the resolution of a dispute that has, directly or indirectly, caused riots between Hindus and Muslims over the past several decades. 

The roots of mediation can be traced to the cultural tradition of all major religions of the world. Its modern, sophisticated and structured version has re-emerged in the form of ADR. Experts in the ADR mechanism comment that given its intrinsic values and merits, especially its potential to narrow down the scope of conflict, there is a possibility of its constructive and sustained application to the Ayodhya dispute. If all the parties seize this golden opportunity and strike an amicable settlement, it will go a long way in ushering in constitutional fraternity in society, besides putting mediation in the forefront of dispute resolution mechanisms in India.

But the choice of mediators leaves much to be desired. Sri Sri Ravi Shankar has courted controversy in the recent past with his pro-Ram temple statements. In March 2018, he was reported to have said, “Muslims should give up their claim on Ayodhya as a goodwill gesture… Ayodhya is not a place of faith for Muslims.” Raising the spectre of violence by both sides, he also said that neither Hindus nor Muslims would accept an unfavourable verdict. His obvious sympathy for one side is unlikely to inspire confidence among the Muslim parties when they sit across the table for mediation and may prove to be a stumbling block.

Given the fact that the court has stated that the dispute is of a religious nature between Hindus and Muslims, perhaps it would have been prudent for the court to steer clear of people professing either faith, and in particular, a religious guru.  There is scepticism among experts about whether the eight-week period is sufficient to explore an amicable solution to an issue which has been festering for over seven decades. 

Prof Faizan Mustafa has commented that in a matter of this magnitude, it would be too much to expect from the mediators to start their work without examining the huge volumes of documents and land records which are in at least seven languages — Hindi, Urdu, English, Sanskrit, Farsi, Avadhi, Ardha Magadhi etc.  He comments that though many would like to see one party simply giving up its claim, mediators cannot and should not suggest giving up the title claim without first satisfying themselves that their suggestion would not cause injustice to the rightful owner(s) under the law. It would be more appropriate for the mediators to first acknowledge, on the basis of documentary evidence, the rightful legal owner of the site where Babri Masjid once stood and then convince this party to give up its claim.

There is also the question whether a matter concerning a deity can be referred to mediation. The Supreme Court, in Afcons Infrastructure Ltd (2010), has stated that matters involving rights of deities, minors and the mentally challenged should not be referred to mediation. Despite these challenges, there is a ray of hope that mediation may actually succeed.