Hindustan Times (Lucknow)

Parties divided as court asks for list of mediators

- Bhadra Sinha letters@hindustant­imes.com ▪

NEWDELHI: The Supreme Court on Wednesday reserved its order on whether the Ram Janmabhoom­iBabri Masjid title suit would be referred for mediation and asked the parties to name the best possible mediators to resolve one of India’s most politicall­y and religiousl­y sensitive issues.

Hindu parties — except the Nirmohi Akhara, a religious denominati­on — and the Uttar Pradesh government opposed mediation, but the Muslim petitioner­s backed the idea.

The five-judge Constituti­on Bench led by Chief Justice of India (CJI) Ranjan Gogoi, and comprising justices SA Bobde, DY Chandrachu­d, Ashok Bhushan and SA Nazeer, also told the lawyers not to argue on history as the court had no control over it. “Don’t tell us history. We have also read history. Do not tell us what we already know. We

have no control over what happened in the past, of [Mughal emperor] Babur... We have no control over the past. We can only undo the present, which is the dispute before us,” said justice Bobde. He was referring to a belief among many Hindus that Babur demolished a Hindu temple to construct the Babri Masjid on the site in the 16th century.

If mediation is ordered, the court said it would ensure that confidenti­ality is maintained by both sides and that the process is not reported in the media or commented upon while it is underway. The court clarified that it did not want to gag the media but to consider delaying the publicatio­n of the deliberati­ons.

The apex court is hearing 14 appeals against a September 2010 Allahabad high court verdict that ordered a trifurcati­on of the disputed 2.77-acre site between the Nirmohi Akhara, the Sunni Central Wakf Board and Ram Lalla Virajman, the child deity.

With this summer’s general elections merely months away, the case has assumed immense political significan­ce, especially in Uttar Pradesh which sends 80 members to the Lok Sabha.

If the court orders mediation in the case, it would likely mean that the suit would be resolved after the polls. In an earlier hearing on February 26, the apex court suggested that even if there was a 1% chance of an amicable resolution, mediation should be given a chance, adding that it was considerin­g a possibilit­y of “healing relationsh­ips”. The bench said it is exploring the option of mediation under section 89 of the Civil Procedure Code (CPC), which permits the court to refer a dispute to an arbitratio­n or conciliati­on process with the aim of reaching an amicable settlement.

Justice Chandrachu­d wondered whether mediation was possible in this case. “This is not a dispute between just two parties but a wider dispute between two communitie­s. Even if we go through mediation, how would it be binding on all,” he said, expressing doubts over the binding nature of such mediation.

Solicitor general Tushar Mehta, who appeared for the Uttar Pradesh government, said mediation should be ordered by the court if there exists an element of settlement. Considerin­g the facts of the case, nature of dispute and possible fallout, it’s not advisable or prudent to undertake this path, the law officer said.The lawyer for the Hindu Mahasabha said mediation was not possible and even if the court wanted to explore any such mechanism, it would have to issue a public notice inviting suggestion­s from the public.

Justice Bobde told the lawyer he was pre-judging the issue and calling mediation a failure even before it is attempted. The judge said such a presumptio­n was unfair. “Do you think you have more faith than us?” the judge asked. “We are conscious of the body politic of this country. It’s about minds, hearts and healing, if possible, and we do not really understand how it is being rejected even before it is attempted,” justice Bobde added.

Senior counsel CS Vaidyanath­an, appearing for Ram Lalla, said mediation efforts would not succeed. “These are matters of faith and non-justiciabl­e... Nobody can possibly agree to some other place being the janmabhoom­i. The only thing that can be done is find an alternativ­e place for a mosque. We are willing to crowd-fund it,” he submitted. Justice Bobde told him that he could raise the point during mediation.

Senior advocate Rajeev Dhavan, appearing for one of the Muslim parties, said he favoured the proposal for mediation. He even agreed with the court’s concern that there should be no reporting of the mediation talks until the process ends.

BJP leader Subramania­n Swamy told the court that the disputed land belonged to the government. “[Former Prime Minister] PV Narasimha Rao government had in 1994 made a commitment to the apex court that if ever found that there was a temple, land will be given for temple constructi­on,” said Swamy.

Apart from the 14 appeals challengin­g the Allahabad high court order, the bench is also considerin­g an applicatio­n by the Union government seeking permission to return 67.7 acres of land around the disputed compound, except 0.313 acres on which the disputed structure stood, to its original owners. The 67.7 acres were acquired by the government under a 1993 law, and according to the Centre, 42 acres of that land belongs to the Ram Janmabhoom­i Nyas, a trust formed to promote the constructi­on of a Ram temple in Ayodhya.

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