However laudable the precept and practice of mediation as alternate dispute resolution, the orders of the Supreme Court referring the appeal proceedings pending before it to a three-member mediation panel, has not received the commendation it may have desired. It is a dispute crying to be solved or resolved for decades together. The suit itself dates back to Regular Suit No. 2 of 1950, and after rounds and forays to Supreme Court, a special bench of 3 judges came to be constituted before Allahabad High Court.
In the meanwhile, and thereinafter and alongside and contemporaneously and beyond too, mediation efforts were explored by many a well meaning
person and institution. Alas, it was not to be. That is the nature of the beast this litigation is all about. The Allahabad High Court painstakingly heard the case, listened to 86 witnesses, rummaged through a mountain of documentation - lakhs of pages- before it pronounced a verdict of 8,000 pages on September 30, 2010. It came in for high praise for “its sagacity to strike a balance between biased and prejudiced interests”. There could not have been a better compliment to the 3 judges and India doffed its hat when the verdict did not set off any communal flare-up, predicted and feared.
Such a judgment was presented to the apex court for judicial review. It was a tough cause - an emotive issue. Religious passions ride on it. And it may have been aroused as the proceedings commenced. All this was given. Where is the doubt? The Supreme Court as the tallest and noblest institution vested with this task had to bite.
So, after all the failed mediation efforts, the expectation rightly was that the Supreme Court would rise to its full height - a Viswaroopa a la Krishna Paramathma - and deliver its sermon from the pulpit, which would be binding on all Indians, irrespective of their religion, caste, creed and affiliations.
As a student of the rule of constitutional law, which that Pitamaha of the Constitution Babasaheb Ambedkar, put it, ‘The book that should tower above all else should be our Constitution and the Supreme Court at the apex shall always lead us unto light by taking its call on the most sensitive of causes with the calmest of decisions without fear or favour’.
Regrettable that the top court has disappointed the likes of us. So much so it has triggered comments on social media bordering on the offensive, “ This is
nothing but abdication of responsibility. It tantamounts to outsourcing a verdict which truly belongs to the Law Lords”. There may be nobility behind the reference to such a vexed issue to mediation. But, the recorded failure of mediation demonstrates an element of futility, considering the extreme positions the contesting parties have taken. It may all land in the lap of the justices, all over again, and then what?
Ordinarily, the trained know that mediation is a tool to be embraced when the rival litigants ‘consent’ to the same. Mediation is never forced down the throats of unwilling parties. In many a matrimonial dispute, where ‘irretrievable breakdown’ is writ large, no court compels the husband and wife to sit across the table for mediation. However, competent and capable the mediation team may be, the courts would refrain from referring the parties to mediation, and would assume jurisdiction to pronounce the verdict which is what the litigants are craving for.
And in a case where the Chief Justice Dipak Misra-led a 3-judge bench, had already declined to refer the dispute to a Constitutional bench, on the issue of whether prayers in a mosque was ‘essential practice of Islam’ and instead directed hearing of the appeal, the 5-judge bench - reconstituted after a couple of them recused themselves for unexplained reasons - could well have fixed the date to commence the hearing.
The papers were made ready. The translations as produced before the High Court were very nearly accepted to be credible and authentic. Counsel on either side were ready, devoted to the cause, not the politics surrounding it, and were eager to take a plunge in such a landmark issue. One of its kind, anywhere in the world. Which lawyer worth his salt would want to avoid pursuing such a cause, whichever side, it would hardly matter, for this would be the test of his/her calibre and standing as a professional one yearns for. Not to be, for the Supreme Court cast aside the prayers for hearings.
On pronouncement of the orders on September 30, 2010, by Allahabad High Court, Prime Minister Manmohan Singh said “All sections of the people to maintain peace and tranquility and to show respect for all religions and religious beliefs in the highest traditions of Indian culture... Let me also state that Government on its part remains fully committed to upholding the rule of law and maintaining peace, order and harmony... It is my hope that the response of the people of India to the judgment will be respectful, dignified and do our country proud. He said the “orders delivered by the three honourable judges need to be examined carefully.” “The correct conclusion, at this stage, is that the status quo will be maintained until the cases are taken up by the Supreme Court,” Now, the Supreme Court says it would not take it up just yet. It wants to give a chance for mediation. The majority verdict of Allahabad High Court was that mosque and temple ‘must co-exist’. The judgment was welcomed by all political parties and only the contesting parties felt peeved that ‘they did not get everything they wanted’. Here was a brilliant judgment from 3 judicial brains who had pored over hours and hours of judicial time and came up with an exposition that the Supreme Court was required to examine with ‘its judicial vision’. Forgetting the centuries gone by, the dispute relates back to at least December 22, 1949, when the Ram Lalla and Sita Mayya idols were installed ‘forcibly’. It was claimed.
India is 72 years old as an independent nation. The Ayodhya dispute is 70 years old. Does it behove well for the rule of law and our
judicial history? The politicians may have their axes to grind. The religious bigots may have their biases. The constitutional courts must raise well above them all. If the political class abdicates its responsibilities, the courts have to step in. They have done it, all the time. Take the case of triple talaq or LGBTQ issue. It is the Supreme Court which responded to the nation’s call and rescued the politicians from ignominy.
Why a different tune now on Ayodhya? Election time or no election time is not the concern of the courts. The cacophony around the issue and calls for hearing and postponement may have strident and skewed motives. The Supreme Court, as the tallest and sanest of the institutions of last resort, could have bitten the bullet and heard the case and affixed its imprimatur for posterity to remember. Instead, they appear to have passed the buck for the present, hoping against hope, that Lord Ram may perform a mediation miracle!
