The sight of lawyers in black and white robes arguing about civil procedure before judges seated on a pedestal, while the hapless litigant strains her ears to understand how her legal claim is being decided, has always been a curious advertisement for the rule of law in India. One the one hand, it holds the promise of applying neutral rules. But so alien is the language of rules and so befuddling the legal procedures for the common person, that the authenticity of a litigation-based rule of law has always remained suspect.
The order of the Supreme Court sending the Ayodhya dispute to mediation is representative of this cultural hesitation regarding the rule of law. Equally tellingly, it is recognition of the salient fact that there exist alternate approaches to adversarial litigation as a means of securing justice.
In substance, though not in form, the order is strikingly similar to the final judgment in the title suit in the Allahabad High Court. There, Hindu groups — those on behalf of Ram Lalla and the Nirmohi Akhada — asked for a declaration of title and possession of the disputed property where the Babri Masjid stood. This was contested by the Sunni Waqf Board and other Muslim groups. The Allahabad High Court held that the disputed property should be divided three ways — one each to the representative Hindu and Muslim groups, and one to the Nirmohi Akhada, which had traditionally been responsible for a part of the disputed property.
This was panchayati justice disguised as the application of legal rules. To be fair to the judges, from the evidence adduced, it could scarcely be stated with certainty that the property definitively belonged to one group or the other. This is because the basis of the legal claim was political all the way down — it required a look not only at archaeological evidence and documented histories (which are political in their own way) but also beliefs (whether indeed Ram was born at the specific spot where the mosque stood), which are not designed to be tested in a court of law. Add to this the protracted timelines, and it is difficult to come to a conclusive result regarding who exclusively owned the disputed property, without making a political judgment. This is neither helpful for resolving the dispute nor for bolstering the legitimacy of a judicial process that is meant to be apolitical.
What transpired in the high court was a mediated settlement minus the healing that emanates from honest conversations in a formal mediation process. The Supreme Court’s mediation order builds on this lived judicial history. It is both pragmatic, recognising the limitations of the judicial process, and wise, in attempting to secure its own legitimacy.
It is, however, unfortunate that the same extent of pragmatism did not extend to the time period provided for mediation and choice of mediators. Setting a hard deadline of eight weeks gives rise to the impression of mediation as a stopgap solution. This has given rise to all kinds of idle, but powerful, speculation of whom the judgment politically benefits. Giving the mediators a longer period to attempt to heal the wounds and find a mutually workable resolution would have given the process more of a fighting chance of success.
This is linked to the criteria used for selecting mediators. Apparent from the choices made is the fact that the Supreme Court desired credibility, identity and mediation acumen. All three criteria are critical if the mediation is to be conducted professionally and its results widely accepted. But a fourth criterion is equally key: impartiality. By selecting Sri Sri Ravi Shankar who satisfies the aforementioned three criteria, but has publicly stated that Muslims should give up their claims on Ayodhya “as a goodwill gesture”, impartiality appears to be compromised. This has the potential to alienate not only Muslims, but also Hindus, if the outcome of the mediation is something that they do not substantively agree with.
Ultimately, a communal conflagration in the guise of a legal dispute over property is ripe for a mediated settlement. It is a method that, if properly worked, is capacious enough to factor in both legal claims as well as emotions of all kinds which, justifiably or otherwise, exist. Instead of doing it while pretending to apply the law, it is also honest in its procedures with room for all parties to make their claims. It is not an alternative to the rule of law, but rather truer to how the law as a system can have legitimacy in India — through understanding and common sense, rather than mere diktat.
Arghya Sengupta is research director, Vidhi Centre for Legal Policy.
The views are personal
Originally Published – https://www.hindustantimes.com/columns/the-sc-s-ayodhya-mediation-offer-is-pragmatic-and-wise/story-r1yYfQ96e18kcOtINQRzWN.html