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Above: A worker chiselling stones at a workshop for construction of the Ram Temple in Ayodhya/Photo: UNI

In a surprising twist to the long-drawn Ayodhya case, the Supreme Court has suggested mediation to settle the land dispute despite past efforts in this regard failing

By Puneet Nicholas Yadav

In February 26, the wait for a resolution of the contentious Babri Masjid-Ram Janmabhoomi land dispute got a new twist with the Supreme Court indicating its desire to resolve the title suit through mediation.

If the Court invokes Section 89 of the Code of Civil Procedure (CPC) to order mediation between the three principal parties—Ram Lalla Virajman (the infant Lord Ram, who curiously is a petitioner in the case), the Sunni Waqf Board and the Nirmohi Akhara—the ongoing legal battle against the Allahabad High Court’s 2010 verdict could go into a tailspin. A decision on a Court-monitored mediation in the legal battle over the ownership rights of 2.77 acres of disputed land in Ayodhya will be pronounced by the five-judge Constitution Bench headed by Chief Justice Ranjan Gogoi on March 5.

The suggestion by the bench, despite past efforts for an out-of-court settlement failing, has come at a time when the Hindu right has been displaying a petulant aggression to by­pass the legal process. They want the construction of a “bhavya (grand) Ram Mandir” at the site of the Babri Masjid, supposedly the exact spot where Lord Ram was born, to begin before the Lok Sabha polls, irrespective of the outcome of the title suit before the Supreme Court.

Ironically, for nearly an hour before the bench came up with this idea, the counsel for the warring petitioners could not even come to an agreement on whether they were willing to accept the translations of nearly 38,000 pages of documents related to the land that were provided by the UP government.

Asked by Chief Justice Gogoi if they were willing to proceed with the case hearing on the basis of the translations —made into English and Hindi from original texts that were in Gurmukhi, Arabic, Persian and Urdu—senior counsel Rajeev Dhawan and Dushyant Dave, appearing for the Muslim parties, said they had not examined the “authenticity and truthfulness” of the voluminous records. Senior advocate CS Vaidyanathan, with the onerous burden of being infant Lord Ram’s lawyer, questioned the bona fides of Dhawan and Dave. Vaidyanathan claimed that Dhawan had agreed to the top court’s 2015 suggestion of accepting translations done by the UP government and that he had been provided the translated documents way back in 2017 but hadn’t questioned their veracity until now.

With the counsel wrangling over the translated works, Justice SA Bobde, who is part of the constitution bench that also comprises Justices DY Chandrachud, Ashok Bhushan and S Abdul Nazeer, offered the possibility of resolving the title suit by invoking Section 89, CPC. “We are seriously thinking over giving mediation a try since the dispute is not about anybody’s private property… Even if there is one percent chance of an amicable resolution, it should be given a try,” Justice Bobde said.

The resistance to the idea of going back to the drawing board for negotiations was almost instant. Nearly every counsel and petitioner present in the courtroom, including the garrulous Subramanian Swamy, told the bench that conciliation had been tried in vain on umpteen earlier occasions and it was now incumbent upon the apex court to resolve the dispute through a judicial pronouncement.

Justice Bobde, however, persisted with his idea, stating that “mediation will be concurrent to the suits pending before the court” and will be kept “confidential”. Chief Justice Gogoi too seemed to share his brother judge’s view and said: “We would like your views as to who could act as a mediator… it should be confidential, we don’t want any third parties to comment.”

With counsel for the Hindu claimants visibly opposed to a renewed mediation effort, Justice Bobde remarked: “If it is just a property dispute we may decide it, but we are thinking more about healing relationships.” Though reiterating that similar negotiations in the past had failed, as was also recorded in the Allahabad High Court’s 2010 verdict, Dhawan noted that the suggestion by the bench was an “important one” and he would be willing to give mediation a try once more if the Supreme Court so ordered. Senior advocate SK Jain, appearing for the Nirmohi Akhara, submitted that he favoured a Court-monitored mediation. With the counsel divided over a Court-monitored mediation, Chief Justice Gogoi said that the court would “not do anything against your wishes”.

In the hypothetical scenario of half the parties being willing for mediation and the others opposed to it, it would be interesting to see whether the Court tries to evolve a consensus on the issue of conciliation or invokes Section 89, CPC. The idea of renewing the negotiations is also intriguing because the 2010 verdict, challenged by all the parties in the case, was criticised on the ground that the Allahabad High Court had taken upon itself to act as a mediator.

Although the prayer before the Allahabad High Court, as is now before the Supreme Court, was to decide on the titleship of the 2.77 acres of disputed land, Justices Sudhir Agarwal, SU Khan and DV Sharma had in their September 30, 2010, judgment attempted a suo moto reconciliation by ordering award of three equal portions of the disputed land to the three principal claimants. The verdict had said: “It is declared that the portion below the central dome where at present the idol (of Ram Lalla) is kept in makeshift temple will be allotted to Hindus in final decree. It is further directed that Nirmohi Akhara will be allotted share including that part which is shown by the words Ram Chabutra and Sita Rasoi in the said map… It is, however, made clear that the share of Muslim parties shall not be less than one third (1/3) of the total area of the premises and if necessary it may be given some area of outer courtyard.”

The unsolicited mediation effort by the Allahabad High Court, through its verdict, had been rejected by all the petitioners. Attempts at an out-of-court settlement made since, including the much-criticised and prematurely aborted one by Art of Living founder Sri Sri Ravi Shankar in 2017, have all failed. It is obvious that arbitration is not possible in this case.

The Supreme Court has to now decide whether it wants to go down the beaten path once again.

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