By AG Noorani
Mar 09, 2019
A five-judge bench of the Supreme Court, headed by chief justice Ranjan Gogoi, on Friday ordered mediation in the Babri Masjid case. Justice FM Khalifula, a retired Supreme Court judge, is the chairman of the panel. Art of Living founder Sri Sri Ravi Shankar and senior advocate Sriram Panchu are the other mediators on the panel. The proceedings will take place in camera and away from the media glare. The panel is supposed to submit the final report within eight weeks.
The judges suggested an amicable resolution while telling the parties that they were seriously “giving a chance for mediation” in an attempt to “heal relationships”. This is a laudable sentiment. But how have past mediations fared? Have they succeeded in resolving disputes like this?
The idea of mediation in the Babri masjid case is inherently flawed. The Supreme Court has deployed a flawed tool and put it in the hands of people, one of whom is Sri Sri Ravishankar, who has already made his position clear on the matter. I don’t think we can really call him an independent mediator.
Various forms of mediation have been tried in the past — before the mosque’s demolition in 1992 — by Justice VR Krishna Iyer and distinguished editor of Mainstream magazine, Nikhil Chakravarty. That went nowhere. Any mediation must establish a via media between the two sides; one of them has already accomplished its aim halfway by demolishing the mosque.
The criminal proceedings on this issue have dragged on for a quarter of a century. The charges have been framed and the case has been committed to the sessions court, which means that two judges have found that a prima facie case exists.
One of the judges of the SC bench, Justice Sharad Arvind Bobde , said that this is not a suit about the title to the property. He is only partially correct. The civil suits did begin with claims to the titles of the mosque. Despite the ruling of the SC quashing the President’s reference to the SC for an advisory opinion on whether a temple existed on the site on which the mosque was built, it has been clear about restoring the civil proceedings as suits to the title to which the law of limitation would apply.
Two of the three judges of the Lucknow bench of the Allahabad High Court endorsed the excavation of the site ignoring the law of limitation and defying the ruling of the SC. Even further, they held that not the law of the land but the faith of the majority community would prevail. It is open to the SC now to nullify that high court ruling and try the case on the original pleadings to the title. Justice Bobde remarked that this is not a suit of property but based on the feelings and faith of the people, and this raises a disturbing question in the light of the background.
The court’s reluctance to decide according to the law is understandable. The court is entitled to the highest respect, but it will soon discover that mediation is no solution. Hence, it’s hesitant to try it as a suit or title, given the feelings of people.
The proper course before it is to refuse to adjudicate on the case; hold that the case is a suit of a civil nature, which alone a court of law can decide under the civil procedure court; set aside the Allahabad high court judgment as, given the situation, the judicial process can’t continue. There is precedence for it. In the UK, in the case of Guildford Four, the judge held that the given the state of public feelings, a fair trial was not possible, and refused to try the case altogether.
This is exactly what the SC must now do: leave it to a future generation to arrive at a fair and just settlement when sanity is restored.
AG Noorani is a constitutional expert