By Alangad Raghunath
Ayodhya Babri Masjid case: The apex court order pertaining to the Ayodhya issue, referring the matter to mediation under Section 89 of the Civil Procedure Code, although done with good intent, suffers from various infirmities. Chief among the infirmities is the lack of consensus among the parties for reference to mediation. It is trite that the sine qua non or the basic essential for reference of a dispute to the alternate dispute resolution (ADR), in this case to mediation, is the unanimity of parties for reference.
The Hindu side to the dispute, going by reports, had made it abundantly clear that they would prefer an adjudicatory approach to the vexed dispute than having one more shot at mediation which is nothing but delaying the ultimate verdict. Maybe, they have become wiser after several failed attempts at mediation in the past. A plain reading of S. 89 of the Code leaves a clear impression regarding the requirement of consent of parties as an essential requirement for referring matter to any of the five ADR processes, including mediation. It reads, Where it appears to the court that there exist elements of a settlement which may be acceptable to the parties ,
Specifically the phrase which may be acceptable to the parties implies that the consent of the parties is essential for referring the matter not only for Arbitration and Conciliation but also for Lok Adalat, Judicial Settlement and Mediation.
Second, the reference to mediation of the Ayodhya issue is actually delaying the ultimate resolution of the contentious issue, which is a sequel or a result to the lack of consensus for mediation, mentioned above.
This is principally due to the option for the parties to revert back to the Court, in case the proposed settlement in the mediation is unacceptable to any one of the parties. Due to lack of unanimity in referring the matter to mediation by the parties, the chances of settlement are very dim and almost negligible considering the hardened positions both sides have taken to their respective points of view. Therefore, in all likelihood, the effort of resolving the dispute by mediation will be an exercise in futility and the consequently the time which can be spent in adjudicating the dispute is wasted on this mediation.
In the present case, the claim and counter claims of either party are so deep rooted and have considerable resonance among the masses of the Indian nation that any compromise either way will have to take in to account the reaction of the people, who number in several thousands of millions.
The position of either party has hardened to such an extent that any give and take will be perceived to be a sell out and a victory of one religion over the other.
Thirdly, when the matter or dispute is reverted back to the Court on failure of mediation, the judges are bound to look in to the possible settlement options given by the Learned Mediators, and base their conclusions on the reasonableness or otherwise of these options. The hearing or the proceeding in the court of the reverted matter does not start with a clean slate, as it ought to be, but with looking in to the pros and cons of the suggested options for settlement given by the Learned Mediators.
The Ayodhya dispute has festered for long. Many riots have happened, many have been injured or killed in these riots. This dispute is the source of a serious religious strife and the matter refuses to die down.
The Hon ble Supreme Court had earlier considerably reduced the scope of the litigation by making it clear that the Court is only deciding the title of the disputed land, and not adjudicating on the question of faith, it was only desirable and expected that the Court had gone ahead with the Ayodhya case and not referred the matter again for mediation.
After all, finality to any litigation, whatever be the ultimate decision, is to be welcomed as the communities involved can know where they stand and put the religious bickering to rest. The apex court, has by referring the issue to a sort of forced mediation has unwittingly ensured that the Ayodhya Temple/Babri Masjid issue is kept in public memory for some more time.
(The author is Advocate on Record, Supreme Court. Views expressed are the author’s own.)