It is the season of politics. India has become a blurry motion film as the campaign gains center stage. The Budget in February was the supporting actor, and the tensions with Pakistan provided that extra spice to the game of politics, while the Media played the role of that able producer of the magnum opus of Elections 2019. In addition to these, certain decisions emanating form the Judiciary have been used to add extra fuel to the fire of politics. The recent decision of the Supreme Court with respect to the century old Ayodhya-Ram Temple-Babri Masjid dispute, arguably leads the pack.
The history of the Ayodhya dispute dates back to the mid 1800’s. The legal history attached to this story is that a general of the Mughal emperor Babur demolished a temple, and in its place, constructed the Babri Masjid in 1528. Hindu mythology, on the other hand, considers that land on which the Babri mosque was built, as the birthplace of the god-king Rama aka, 'Ram Janmabhoomi'. According to Hindu mythology, Lord Rama was the seventh avatar of the Vedic-god Vishnu, and the ruler of the mythological Kosala Kingdom. Lord Rama is a major God in Hindu belief, and stands as the embodiment of justice, and virtue. His life’s story, Ramayana, is also directly linked to the festival of Diwali – the biggest Hindu festival.
Muslims, on the other hand, believe that Babri Masjid has been their place of worship for centuries, and their claim to the land was not contested until 3 centuries after the mosque’s construction. Legend would have us believe that the religious confrontation between the Hindus and the Muslims, in the subcontinent, started with the Babri Masjid Dispute. However, there is no documentary evidence to buttress this fact. The first instance of a court proceeding in the dispute can be found from January 1885, when a Mahant Raghubir Das sought permission to construct a temple on the chabutara (platform) outside the Babri Masjid. His plea was rejected. The temple-mosque issue then remained in suspended animation until December 22, 1949, when trespassers broke into the Babri Masjid complex, and installed an idol of Ram. This created a lot tumult between Hindus and Muslims at a time when the violence from the partition was still searing fresh in people’s memory. At the time, the actions of the trespassers fanned rumors of a miracle, forcing many Hindus to descend upon the mosque to pray – further raising tensions. Over the next 12 years, as the independent Indian Judiciary came into being, so did the Babri Masjid Dispute. Four title suits followed, all of which are still pending before the courts. In December 1950, one Mahant Ramchandra Das Paramhans who is now the chairman of the Ram Janmabhoomi Nyas (a Hindu Temple Trust) petitioned the court, claiming ownership of the land. The Sunni Central Boards of Waqfs (a Muslim Trust) in the state of Uttar Pradesh followed up with another suit in December 1961. Two other suits were also filed. The All India Panchramanadiya Nirmohi Akhara, and the Hindu Mahasabha also jumped in, claiming for the Hindus.
All the four suits were clubbed together and brought before the Allahabad High Court in 1996. The clubbing of these cases was precipitated by the single-most communally damaging moment in Indian politics. In December 1992, a political-religious rally led by national stalwarts of the Bharatiya Janta Party – Mr. Atal Bihari Vajpayee (who would go on to become Prime Minister of India), and Mr. LK Advani (who went on to become Deputy PM of India) – precipitated into a riot, leading to the demolition of the Babri Masjid. The fall of the structures at Babri Masjid – which had remained closed because of court orders until 1986 – compounded an already difficult situation, and was immediately followed by riots across the country. As 1993 dawned, the Congress-led government of Prime Minister PV Narasimha Rao government struggled to calm the situation. It issued an ordinance to bring over 66.7 acres of land in Ayodhya, including the 2.77 acres on which the Babri Masjid had stood, under the government’s control. It was soon approved by the Parliament, as The Acquisition of Certain Area at Ayodhya Act, 1993. The Act prescribed maintenance of status quo that had prevailed just before the acquisition. It therefore allowed for a makeshift temple that had already been created and allowed for puja to be continued. When challenged, the Act was upheld in the courts. However, the legislative action was only a temporary stop-gap that prevented the situation from creating a state of anarchy. It did not settle the moot point of ownership of the land – and how it was to be used.
The Hindu Claim – Ayodhya is surmised to be the birthplace of Lord Rama. Due to the central place the city has in Vedic history, and mythology, Ayodhya is considered to be one of the seven sacred sites where Moksha, or a final release from the cycle of death and rebirth, may be obtained. It is also a well-known pilgrimage site for the followers of Hinduism. The Hindu claim emanates from these factors. Some go further in saying – although not in so many words in courts - that Hindu religious practices are hindered by the presence of a mosque in the region, making this a bone of contention in this issue.
The Muslims’ Claim – Mir Baqi, the General of the first Mughal Emperor, Babur, is believed to have built the Babri Masjid in Ayodhya. The dominant claim is that this mosque was built after destroying a temple that had existed at the spot. While the Archealogical Survey of India has claimed that there exists some proof of the existence of a temple, it has not explicitly laid down that the said temple was dedicated to Lord Rama. Furthermore, historians and experts on South Asian history point out that the practice of building religious structures, often after destroying pre-existing one’s, was common among rulers of all religions – and thus should be understood as part of the time’s morality. Historians like Richard Eaton, for instance, talk about South Indian Hindu rulers destroying temples built by each other. The presence of the idol of Lord Ram in the mosque, found in 1949, acted as an obstruction for Muslims to offer their prayers. Subsequently, the destruction of the mosque in 1992 triggered religious sentiments and served as a base for Muslims to claim ownership over the land.
Ayodhya in the 21st Century
In 2010, the Lucknow Bench of the Allahabad High Court delivered its verdict on the 4 combined title suits. It upheld the Hindu belief of Lord Rama’s birthplace being at the sport claimed. Accordingly, it partitioned the disputed land three ways – between Ram Virajman (literally, Lord Rama, represented by the Hindu Mahasabha), Nirmohi Akhara, and the Sunni Waqf Board. This abated the issue of worshipping for a while but eventually the issue about the title over the land cropped up again. The Allahabad High Court had still not settled the question of ownership of The Babri Masjid. For this reason, the verdict was challenged in the Supreme Court in 2010. For almost seven years, the Ayodhya dispute remained buried in the highest court of the land. Until, the 11th of August 2017, when the then Chief Justice of India, Dipak Misra, put the case on fastrack. However, the Supreme Court’s ritual of adjournment of cases prevailed, and the case was finally heard on 9th March, 2019. On that date, the Supreme Court announced its intention to send the case for mediation, and appointed a three member panel for the purpose. None of the parties have formally challenged the mediation process.
Mediation – the light at the end of the tunnel?
It is against a complex backdrop of elections, political debates, and religious polarization, that the Supreme Court has referred the title suit for mediation. Section 89 of the Civil Procedure Code, 1908, mandates that in all cases where it appears to the Court that an element of settlement may be acceptable to the parties, the court may, inter alia, refer the parties to mediation.
A mediation is a party-centered, and structured negotiation process, where a neutral third party assists in amicably resolving the dispute. Even though the mediator(s) facilitates their communication and negotiations, the parties always retain control over the outcome of the dispute. As such the process does not lead to a decision, or an order – only a settlement that is mutually agreeable can be laid down. It is up to the disputing parties to reach an agreeable solution. In court-directed mediation – which is the process in this case – the agreement arrived at is enforceable with the same force as the judgment of a court of law. In case of lack of any scope of settlement even after mediation, the parties can resort to an appeal with the Supreme Court. The usual process of mediation has gained a lot more significance in this case, which is not only a regular property dispute, but a question upon which substantial political, religious, and personal beliefs are predicated. It therefore becomes important to look at the mediators appointed, and it is in this regard that some controversy has been seen.
The Mediation Trio
Fakkir Mohamed Ibrahim Kalifulla: Chairman of the Mediation Panel
"I understand the Supreme Court has appointed a mediation committee headed by me. I'm yet to receive the order copy. I can say if a committee has been constituted we'll make every effort to resolve the issue amicably."
Justice Kalifulla is a retired judge of the Supreme court of India, but was in the spotlight due to his work as the Chief Justice of the Jammu and Kashmir High Court. Here, his zeal and tenacity to ensure increased access of the public to the higher judiciary brought him to fame. Justice Kalifulla also played a pivotal role in suggesting the way forward for BCCI administration – India’s privately run cricket club that was in the midst of a massive corruption scandal – by providing “valuable insights” on the issue. Another important case decided by Justice Kalifulla concerned the elections to the Chennai City Corporation, where he rendered a dissenting judgement and held that elections to 99 wards should be set aside, due to irregularities. A larger bench later agreed with his view. Justice Kalifulla’s presence on the panel brings with it a very longstanding practitioner of law, and an unblemished reputation for professionalism, that would be essential for this process to succeed.
"It is a very serious responsibility given to me by the Hon'ble Supreme Court. I will do my best."
Sriram Panchu is a senior advocate in the High Court of Madras. He played a key role in the development of mediation as a popular dispute resolution process in India. He has also authored several books on mediation, and the technical details associated with the process. The Supreme Court has referred to him as an "eminent trainer" and "one of the foremost mediators in the country". Like Justice Kalifulla, Sriram Panchu’s reputation is set to add credibility to the mediation process.
Sri Sri Ravi Shankar
"Respecting everyone, turning dreams to reality, ending long-standing conflicts happily and maintaining harmony in society - we must all move together towards these goals."
The appointment of Sri Sri Ravi Shankar to the panel of mediators has been greeted with a mixed set of responses. A renowned spiritual guru, Ravi Shankar is not new to the game of mediation. For decades now, he has been trying to bring together disparate groups together to find solution to conflict driven issues. His initiatives in conflict resolution range from the FARC rebels in Columbia, to the Kashmir issue. He earlier suggested an out of court settlement of the Ayodhya issue where both the parties could settle this issue amicably by “gifting” each other certain pieces of land. He has conducted detailed analyses of the repercussions that might arise if either of the sides were given title over the land and has continuously urged for an alternative dispute resolution as he believed that a judgement on the title will have adverse effects on both the sets of people thereby creating room for unwarranted scope for bias, hatred and malice. He has also been bestowed with the coveted honor of Padma Vibhushan.
However, being a Hindu spiritual guru, his neutrality has been questioned by many. It is not helped by the fact that a statement has been attributed to him, which as a private citizen is a view he is entitled to hold, but, can impact the perception of his neutrality – something that is the essence of the entire process. As reported by the India Today, the guru had once said that ‘India would turn into Syria if the Ram-Janmabhoomi (aka, the Babri Masjid) dispute is not resolved soon.’ While he later clarified that he was only referring to the possibility of bloodshed, it is unclear how the parties to the dispute will formally react to his appointment.
Battle of Wills or a Bed of Roses?
The stage is set. The actors are ready. The panelists have reached Faizabad (the seat of the Mediation Panel, in the state of Uttar Pradesh) to hear the litigants and arrive at a consensus on this centuries old dispute. The panel is supposed to submit its report within a month – the time is likely to be extended. However, the big question that has to be answered is, “will this suffice?” Mediation has been a medium of dispute resolution to which two parties must voluntarily consent. In the present situation, while the possibility to oppose the result of the mediation process exists, its very inception has been done by the Supreme Court. Another facet to consider is the reasoning that prompted the Supreme Court to take this step, particularly after so many years have passed? It has complete jurisdiction and ambit to resolve this matter as a regular property dispute. Perhaps, the SC realizes that matters concerning conflicting interests, and emotions of the community at large, are best handled in a more empathetic, and personalized setting than a courtroom.
Behind all the facts of the Babri Masjid and Ram Janmabhoomi, there are two fundamental emotions. Among the Hindus, the belief is that a Hindu-majority country should have a temple at the site where a large number of people believe that their God was born. Among the Muslims, the very existence of a mosque, whatever be its history, is an indelible part of their community’s existence in the sub-continent. Due Process and Constitutional protection therefore, become a matter of the Constitution’s guarantees to all citizens – particularly, the minorities who are vulnerable.
Ideally, Mediation is supposed to provide the cordial, personal, and harmonious atmosphere of resolving a dispute that has plagued the sub-continent for over three centuries. However, the scope of appeal – which again cannot be removed – allows for a repetition of the cycle of petitions, appeals, hearings and above all a lot of PROCRASTINATION. Be that as it may, the bigger threat of the dispute concerned its boiling over at a time when India is entering one of the most communally charged elections of its lifetime. As a senior lawyer, Salman Khurshid rightly puts it,
“The SC killed 2 birds with one stone”
The supreme court could not afford to allow religious emotions to come to a boil during elections. At the same time, delaying the dispute could have also pushed the issue to the brink. By diverting it into the mediation process, it has bought itself atleast 8 weeks to allow for a consensus on the issue. The bar on media reporting, along with the fact that the proceedings will be in-camera (not open to the public contemporaneously), ensures that the elections would not be much impacted by the issue. Well played, My Lords!
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About the Author
Ananya Satish is a budding lawyer and is currently pursuing B.A. LLB from National Law University, Odisha. She is a passionate speaker and has participated in many Model United Nations Conferences and debate competitions in the school level and has also has many citations in her name. Ananya also enjoys the law school tradition of mooting and has developed a keen interest and passion for the same. She is an avid reader and has a taste for classics and crime fiction. She is a trained bharatanatyam dancer and aspires to pursue legal journalism post law school.