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Mediation In Ayodhya Dispute: Locating The Plausible Lacunae

The political controversy over Babri Masjid is an integral part of post-colonial political discourse in India. The Babri Masjid demolition did not only lead nation-wide violence where hundreds died [1]but also deeply impacted the very soul of the nation. The dispute which affected the delicate social fabric of our country is dated back to 7 decades. It has its own outcome with the dynamic and changing political spectrum from the 1990's to today.

From a dispute to be solved from an adversarial system like the Judiciary of India, there can be a decision based on rights and law of the land; it will be in the favour of one and against one. But this unique issue was connected to the social fabric of India and decision in any one's favour will not suffice. For this kind of situation, there is a need for resolution in such a way that both parties accept the decision and a positive relation is made between them for a prosperous future.

Black's law dictionary defines Mediation as an act where there is a third person who interferes between two contending parties intending to reconcile them or persuade them to adjust or settle their dispute[2].Though critics can make arguments for mediation concerning religion-related property dispute in both Positive and negative way.

Some taking the view that in a religion and community-based dispute, there is always a chance of irrational thinking, different maps of reality and rigidity on both the side.[3]The constitution of India supports and encourages religious harmony and the preamble about fraternity among the people of India.[4]

Passing a pronouncement when a decision in one community's favour is given it will not only increase the polarization between the two but will also lead to a surcharge of emotion in the people. In this article, the author will try to analyse the reason behind the failed mediation that took place among the parties with special emphasis on the recent SC monitored Mediation.

The author will try to incorporate the perspectives of both the parties for deriving out the plausible reasons for this fiasco. After analysing the grounds, the author will further highlight some opinions and suggestions which should have been incorporated in the mediation for this case.

Historical Background
From the gravity of the communal violence and the destruction of Babri masjid at that time, it can be ascertained that it was not a normal land dispute but a dispute that was connected with a religious sentiment on which the whole India's opinion was divided into two. The issue of Babri masjid dates back to 7 long decades and it took a violent turn in 1992.

Later, in 1950, this issue finally reached the doors of law to seek justice. Gopal Singh Visharad of the Hindu MahaSabha became the first person to file a suit in independent India in the case. After that, the two communities had been fighting this longest-running battle in our country's history, which finally got concluded in 2019.

The gravity of the dispute got intensified when a large hindu mass demolished the Babri Masjid with iron rods and sticks on 6 December, 1992. This sole incident witnessed the dreadful bloodshed of at least 2,000 people across the nation.[5]

Though informal, the importance and the need for mediation was felt even before the 1992 demolition of the Babri masjid. There have been 10 previous failed attempts of mediation in the history of this case which also includes the one which happened even before the demolition of Babri Masjid. During 1990 when Chandrashekhar was PM, he made an informal panel consisting of Mulayam Singh Yadav, Bheru Singh Shekhawat and Sharad Pawar to talk to the leaders and contestant from both the side and try to reach an amicable settlement.

The attempt can be considered as the most serious and fairly good one but there was no success as the demolition took place and their government didn't last too long. After that, several other attempts were made, though not properly mediation, in the form of the government acquiring a portion of the disputed land to construct Temple, mosque, library and garden but it also failed. Atal Bihari Vajpayyee the then PM also made an Aayodhya Kosh but it did not garner any result. Even in 2010, when the case was before the Allahabad HC, the court asked for an out of the court settlement but at that time all the three parties denied for the same[6]. Finally, the last attempt was made by the SC for an out of the court settlement which too failed.

Reason For Failure Of Mediation
The objective of mediation is to reach a logical, acceptable and a mutually agreed decision which needs a change in perception of the parties and there understanding of the dispute without invoking the authority of law.[7]

No dispute resolution Process can guarantee 100 % success rate and when we talk about success it can be perceived in two ways- success in process and success in outcome. [8]On an analysis of the mediation aspect of Babri masjid case, it can be ascertained that it was unsuccessful in both these aspects; even a basic guide to successful mediation was not followed. Even though the Supreme Court wanted a resolution from mediation but at the same time the efforts that were made were not sufficient.

Since the mediation was kept off the radar of media and public a clear picture is perhaps difficult to extrapolate as both the side have a different perspective but a general idea can be drawn in this respect.[9] There are mainly two types of mediation process. First, facilitative style of Mediation in which the mediator role is purely facilitative. He gives no opinion on the likely outcome or position of both the parties.[10] But in the case of Babri masjid mediation, this would prove unsuccessful as both the parties were not on the same page. There was a need for a problem-solving approach but it was not present.

It is an undeniable fact that mediation proceedings remain confidential in nature therefore, the exact reason behind these fiascos are hard to find. Although, the analogy which can be drawn from all these failures is the very fact that the parties have adamant approaches and hard to shake their grounds.

The prima facie parties to this case are Nirmohi Akhada, Ram Lalla (represented by the Vishwas Hindu Parishad- run Ram Janambhoomi Trust) and the Sunni Waqf Board. In order to secure permanent solution for this case, the five- judge constitution bench for the first time outsourced the process to mediation. This move was taken to usher a pragmatic shift in the way religious matters can be resolved by taking the help of non-litigious.

Ayodhya dispute, being the classic reason of almost all the community tumults of our nation, has thousands of people's deeper sentiments attached to it. From the panel composition which consists of SC included Retired Justice Kalifullah (Chairman), spiritual leader Sri Sri Ravi Shankar and senior advocate Sriram Panchu[11], it is clear that an evaluative style of mediation was preferred which was expected to give their opinion, assessment of the issue and eventually help to arise at a mutually agreed settlement. [12]

Due to the popular advocacy of interest and feelings of the people in this case, allowing only courts to deliver the judgment based on rigid rules and procedures is quite undesirable in the eyes of the people. Therefore, with this reasoning in mind and to foster fraternity among the communities, mediation settlement is significant.

This article provides a pragmatic approach to the common reasons for the failure in mediation of Ram Janambhoomi case by taking all the aspects in a cumulative manner, that are:
  • The practice of mediation requires the preservation of parties mutual relationship wherein both recognize the need of not only respecting one another's views but also maintaining their future relationships. The role of Mediation comes to play when the parties' emotions runs too high in cases like Ayodhya case.

    But, while listing the reasons for the failure of mediation in Ayodhya case, it is nearly impossible to leave aside the prime reason i.e. the indifferent attitude of all the three parties. Since the beginning of this dispute, all the parties are holding their opinions and are not ready to compromise at all. The Uttar Pradesh government, and other Hindu bodies including the Nirmohi Akhara were the first ones who were not happy with the idea of mediation and after that the Muslim bodies.

    Therefore, another court referred mediation also became a futile attempt as both the parties backed with their adamant religious beliefs never retreated their hardened positions. This has been the lacunae which every mediation faced and ultimately faced its end.Therefore it was difficult for the expert panel to create an environment where both the parties were ready to engage and contribute to the process.

  • The time provided for resolving the longest running battles of all time in the history of India was too short to reach out to amicable settlement. The Supreme Court of India provided 8 weeks to wind up the Mediation proceedings which are reasonably a short period to examine and understand the sentiments of one another (parties). Due to the callous emotions of both the parties, the Court should have given more time to bring a favorable settlement for all.

  • Sri Sri Ravi Shankar was appointed as a panel member but as a general concept, a mediator is required to be the neutral party who can be trusted by the parties. But agitated from the past activities and comments of Ravi Shankar, the Muslim party already had some serious trust issues about his fairness. Referring to the statement once quoted by Shri Ravi Shankar, he said that Muslims should give the land to the government in the name of nation. This itself questions the very authenticity of the Mediator which is required to be independent and impartial.

  • Mediation being an informal alternative to litigation takes place when both the parties voluntarily agree to it. In the present case, the fact that it was a mediation specially sponsored by the Supreme Court of India under its supervision created crate a deterrent in the mind of parties as it becomes a tick box exercise for them to comply. And in doing so, they make their demands even higher with a wish to play games with the opposing party.

  • Even if the mediation attempt was successful, there was a need for the third party to agree to the resolution agreement and the court to finally approve it. This makes it a clear case of lack of authority to settle the dispute. In mediation, decision taken by the parties is final but in this case, the decision has to be accepted by the Supreme Court otherwise there is no settlement. This brings the very pertinent question that then what is the need to have this mediation when the ultimate decision is still in the hands of the Court.Thus, making the chances of successful mediation even narrow.[13]

  • There is a lack of suitable legislation in the country to govern the process of Mediation. In the present scenario, the legal provisions for referring the case for mediation are under Section 89 of the Code of Civil Procedure. Concerning the same for Lok Adalats, there is legal provision available in the Legal Services Authorities Act, 1987. It is important to note that the Arbitration and Conciliation Act, 1986 deals only with the Arbitration and Conciliation not with Mediation.

    The complete process of Mediation in the country is handled by the Mediation and Conciliation Project Committee constituted by the Supreme Court of India without any act being in place. Therefore, it can be said that though SC wanted a resolution through mediation but it lacked in efforts and some basic marker of mediation success was missed.

Suggestions And Conclusion
The instant case had been dragged on for decades which ultimately wreaked havoc on the body politic of the country. Parties should have smoothened with their hardened positions in order to explore other nuances as well other than their stated opinions. If they would have stroked an amicable settlement, then it must have ushered a new hope for communal harmony and fraternity between both the parties.

Mutual interest of all the parties governs the very basic criteria in Mediation. Appointment of an independent and impartial Mediator is very significant on whom all the parties can trust. Disputes with immense gravity should be provided with longer period of time for its successful resolution. Further, India requires a statutory act to govern mediation process so in order to locate an authorized body for its regulation and by this, mediation as an alternative field will flourish in the nation.

The success rate of mediation is around 86 to 90 per cent around the world [14]and seeing the backlogs of Indian court, it is wise to say that now is the time to shift from litigation based approach to a resolution based problem solving approach. Negotiation and mutual agreement in the form of mediation is the way forward.[15]

Though there are some common mistakes that can take place during mediation as discussed earlier but there is always an option of proper training and improvement. Similar training is conducted by Firdosh Karachiwala (Chairman Centre for Alternative Dispute resolution, Mumbai), he is a master trainer on mediation and has conducted training programs for judicial officers, lawyers and even law student.[16]

The article provided a vivid analysis of all the plausible reasons of Ayodhya decision's failure. It finally concludes with a reflection on the points which should have been kept in mind while undergoing mediation.

End-Notes:
  1. Cristopher John,The Camphor Flame: Popular Hinduism and Society in India, Princeton University Press, 262 (2004), ISBN 0-691-12048-X.
  2. Mediation, Black's Law Dictionary(11th ed. 2019).
  3. DonalO'Reardon, Can religious differences be Mediated? (2010).
  4. India Const. Preamble.
  5. Guha, Ramachandra , India After Gandhi. MacMillan582 (2007)
  6. Gopal Singh Visharad v. Zahoor Ahmad, MANU/UP/1185/2010.
  7. Zartman& L. Rasmussen, Peacemaking in international conflict: Methods and techniques (1997).
  8. Blair Sheppard, Third Party Conflict Intervention: A Procedural Framework, 226(1984).
  9. John O Shea,Mediation Success or Failure (2017).
  10. Anil Xavier, Indian Yearbook of International Law and Policy, Mediation here to stay! (2009)
  11. M. Siddiq v. Mahant Suresh Das, 2019 SCC OnLine 1440.
  12. Katina Foster , A study in mediation Styles: A comparative analysis of evaluative and transformative style (2003).
  13. Jack G. Marcil& Nicholas D. Thornton,Avoiding pitfalls: common reasons for mediation failure and solutions for success.
  14. Warren king, Mediation: Success or failure?(2017).
  15. Supra 10.
  16. FirdoshKarachiwala,Certificate training program CADR (2020).

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