Mediation is a way out for an impending legal dispute in jurisprudence. But the current order of the Supreme Court referring the Ram Janmabhoomi matter, the mediation has itself become a dispute. The Constitution Bench of the Supreme Court referred the Ayodhya Ram Mandir dispute to a Mediation Committee consisting of three members namely Justice F M Kalifulla, Sri Sri Ravishankar and mediation expert Adv Sriram Panchu. Over the past few weeks, we have witnessed a Brobdingnagian outcry by the intelligentsia regarding the neutrality of mediators.
Referring the dispute to mediation in itself is a continuation of the dilemma that the Apex Court has been facing in resolving this dispute. To adjudicate or not to. The Ex CJI of India Justice J S Khehar had himself offered to mediate in the dispute or to let any other sitting Justice of the Supreme Court takes the mantle to mediate the dispute. The three-way bifurcation of the Janmabhoomi by the Allahabad HC was not sought by any party nor was mediation sought by any party. The Apex Court has seemed to act on its own accord in referring the dispute to mediation.
In committing this act, the Supreme Court seems to have taken into consideration the socio-religious and political realities that plague this issue. The Supreme Court had proclaimed that the dispute at hand is just a title dispute and it would be folly on its part to see the dispute through any other prism. However, a reference to mediation and nudging the parties to arrive at a consensual settlement is, in fact, a digression from treating the dispute as a title issue. Why would two Chief Justices one current and one previous emphasize on arriving at a consensus? The constant efforts of the Supreme Court on arriving at a settlement seems to take away this adversarial nature of the judiciary and keeping the Apex Court away from any repercussions that are bound to happen in this case, either way, the dispute is decided.
It seems the Supreme Court is trying to draw lessons from the social upheaval after the Sabarimala judgment and is treading cautiously on a dispute which is already showing no signs of progression and crawling at an extraordinarily slow pace. The Indian political class has already put the ball in the Apex Court’s court by implying that whatever be the decision of the Court it would be complied with and a befitting closure would be given to this dispute. In what would be denoted as a double whammy for the Hindu litigants and the Hindu society at large neither an ordinance or bill is seeing the light of the day for constructing the Ram Mandir nor a judicial adjudication showing any signs.
The Supreme Court has tried its best to adhere to the maxim that “Justice should not only be done but should seem to have been done”. It has sourced mediators from various backgrounds and various religions (especially Hindu and Muslim between whom the dispute lies). Many questions have been raised on the constitutionality of such a mediation committee itself. Jurists and commentators alike have pointed out that suits which are in the nature of representative suits cannot be ordered for mediation as the interest of the larger public are involved and a few cannot claim or mediate on the behalf of a large number of people.
Adding to this quandary the foremost point that is omitted in most debates following this order is that the Hindu litigants are litigating not just on behalf of all other Hindus but on behalf of Shri Ram Lalla Virajmaan! The infant Deity himself. Indian Jurisprudence has already accorded Deities with legal personality capable of holding and disposing of the property. Can anyone mediate on God’s behalf without his willing consent? It is pertinent to note here that the SC has invoked Sec 89 of CPC, 1963 to refer the dispute to mediation. The present mediation committee has not been constituted as per an application under the Arbitration & Conciliation Act, 1996. If it were under the provision of the Arbitration Act then it would have been treated as an award and would be binding. No such clarity has been provided by the Supreme Court.
Arriving at another issue concerning the mediation dispute is the appointment of the venerable and world-renowned spiritual leader Sri Sri Ravishankar as a mediator in this case. Critics like Romila Thapar, Adv Indira Jaisingh have pointed out that Sri Sri is not fit to be a mediator as he is not an unbiased person and he would be inclined to take sides in this case which should not be a case for a mediator. This objection is patently wrong on two grounds firstly just being a religious leader or a saint or a devout person cannot make him/her ineligible to mediate the dispute. This notion of compartmentalizing religion and state/society without understanding the forces of interplay is a western notion of secularism.
A religious person or an ordained saint would have a better understanding of religion than a Judge who has undergone secular education. Recently, one of the Justices of the Supreme Court even mentioned that a Judge should not be made to wear a Theologian’s hat in a dispute concerning religion/ religious sensibilities. Moreover, Sri Sri has a great track record of mediating between warring groups and initiating a peace process across the globe. An example of this would be the deal between the Colombian Government and the guerilla movement FARC (Revolutionary Armed Forces of Colombia) which was brokered by Sri Sri.
If a person has a record of bringing various warring groups at the table on foreign soil then why not utilize his abilities back home. Also, Sri Sri was the only person in India during the pendency of dispute to suggest reconciliation and consensus as a path to resolve this dispute. Indira Jaisingh has raised the observation that men of faith cannot be men of law. Justice Rohinton Nariman would be an ordained Parsi priest but he can also preside over the Supreme Court. The personal faith of a person need not always come in the way of his conviction to discharge his duties.
The purpose of mediation is for a party to acknowledge its wrongdoing and for the other party to recognize it and offer terms for settling it. As Puri Sankaracharya Swami Nischalananda Saraswati has aptly pointed out that the purpose of mediation is to inspire the opposition to accept the truth, and not to normalize barbarity. When there have been no traces of reconciliation or even an acknowledgment of the historical truth of a pre-existing Vaishnavite structure on the disputed land the decision to refer the dispute for mediation is not based on merits but is taking a neutral political stand.
The best way out of this dispute is for the Supreme Court to adjudicate the dispute in the exercise of its power granted by the Constitution. The abdication of the constitutional duty to adjudicate is not a polite way to reconcile with the socio-religious realities. Adjudication in spite of the constant bickering and attempts to thwart the judicial process would evoke confidence and trust in the Judiciary. Mediation would at best be a test case in the efficacy of adjudication over the efficacy of consensual agreement in the present litigious Indian society.
Amar Maruti Patil & Adithya Anil Variath are final year students of law pursuing B.B.A.-LL.B. (Hons.) from School of Law, University of Mumbai’s Thane Sub Campus.