Wednesday, March 06, 2019

Ayodhya imbroglio, is mediation viable?

The suggestion of the Supreme Court for considering mediation for resolving the Ayodhya Mandir-Mosque dispute shall be seen as sagacious counsel to seize the opportunity to bury the hatchet between the warring parties and usher an era of understanding and camaraderie. Court’s exhortation is not an abdication of its duty to adjudicate. It is a propitious reminder to seek answers that are not binary options; if multiple, they cannot be ticked as right or wrong; or just or unjust: Is not the Ayodhya dispute outside court and not inside? Can the lawyers be trusted to argue the cases with dignity? Will the opinion of the court represent a dispensation of justice to all parties? Will all the people rest in quiet after the verdict and go about peacefully? Do we not have answers that could bring victory to all of us Indians as siblings in arms and not sepoys with arms?

Standards of proof in court are different
It is difficult to say when the ‘Ayodhya dispute’ itself started. There was no unanimity in the 3 member judgment of the Allahabad High Court delivered on 30.9.2010 that there was a temple at the place where Babur had ordered the construction of a mosque or when the mosque was constructed. However, Justice Sibghat Ullah Khan wrote that there was evidence that much before 1855, Ram Chabutra and Seeta Rasoi had come into existence in the same place where the mosque had been constructed. He observed: “It was very, very unique and absolutely unprecedented situation that inside the boundary wall and compound of the mosque Hindu religious places were there which were actually being worshipped along with offerings of Namaz by Muslims in the mosque.” Can we understand that there was unusual camaraderie between two communities, both offering worship according to their own tenets? Justice Khan did find not proof that the Babri mosque was constructed at the same place where there existed a Ram temple. However, there was archaeological evidence of existence of ruins of once existing temple under the Babri mosque. He said, “Mosque was constructed over the ruins of temples which were lying in utter ruins since a very long time before the construction of mosque and some material thereof was used in construction of the mosque” (sic). This was central to the final dispensation that Hindus and Muslims jointly owned the place.  Justice Sudhir Agarwal said that there was not even proof that the mosque was constructed in 1528 but “this much is clear that the same was constructed before the visit of Joseph Tieffenthaler in Oudh area between 1766 to 1771.” Do you realise that even commonly accepted ‘historical facts’ may be found to be not established, if you subject various incidents to pass through the prism of judicially acceptable evidence?

Where Courts cannot be effective
Judgments of courts do not always resolve disputes. Issues of language, region, religion, and sharing of natural resources are wholesome recipes for making political capital to create divisions amongst people. River water disputes between States have been stoked for cheap political gains, even when facts and law were clear and judicial pronouncements were rendered after long deliberations. If the courts in India carry the odium of poor performance, it is largely due to the kind of cases that are brought to the portals of courts are not typically fit to be brought to courts but resolved through negotiations. There are too many cases that are not just fit for hearing before courts; that require no forensic skills of reasoning to write lengthy judgments; that are ill-suited because they adopt adversarial posturing; And Ayodhya imbroglio is precisely one such.

Identifying the nature of Ayodhya dispute  
It is no less an enigma if Sri Ram is a mythological character or a historical hero. Mythologies cannot all be wished away as distortions of facts and hence meaningless. They help consolidate a common belief system through continual storytelling and foster a sense of belonging to a shared experience of history. In that way, Ram’s birth place as Ayodhya evokes the same sense of reverence as Jerusalem does to countless persons that owe allegiance to Judaism, Christianity and Islam. There is a wide spectrum of options in all types of cases, with negotiation at one end and trial as the other. The former means that the parties retain control over the process and outcome while at the trial, a third-party judge or arbitrator has a power to render a binding decision on a pre-designated process of adjudication. Within these extremes exist at the middle mediation, where the third-party neutral does not have a power to impose a binding decision but the parties themselves examine and decide on the outcome. The Ayodhya dispute is not a case that is built on rights where a third-party judge could deliver a judgment that is satisfactory to all of them. This is an interest-based litigation where one party desires the retention of status quo as a mosque, while the other is interested in establishing as place of worship not based on any established right but what one believes as place of birth of venerable Sri Ram based on his religious and cultural moorings. Costs and time are not issues at hand. Restoration of dented prestige, enhancement of social standing and durability are the motivations for the nature of final outcomes that are better assured in a formulation where parties control the outcome. A public posturing through arguments of counsel will offer little scope for concessions but a concession on a point in a confidential in-house process will not obtain public gaze to be viewed as a sign of weakness. In creating a system for dispute resolution, it is best to identify as many persons as possible as stakeholders in order to satisfy a large body of persons with diverse interests and garner better support to the outcomes.
Identifying the stakeholders
There was an attempt by Sri Sri Ravishankar to mediate the dispute. He oversimplified the effort.  His gesture was good but the process that he adopted was not adequate. Identifying the stakeholders to the dispute and convening them are key elements to design a system to resolve the dispute and formulate an agreed process of carrying the negotiation. The parties named in the 13 appeals pending before the Supreme Court are naturally the persons who shall be called to participate. Out of the 5 suits, 4 suits were filed between January 1950 and 1962. The first 2 suits were filed by individuals in their capacity as worshippers. The second suit was allowed to be withdrawn on 18.9.1990. The 3rd suit was filed by Nirmohi Akhara of Ramamnand Sect through its Mahant in 1961, the 4th suit was filed by Sunni Central Board of Waqfs Uttar Pradesh and 9 Muslim residents of Ayodhya in 1962. The State of UP and some named individuals were also parties. The 5th suit was filed in 1989 by Bhagwan Sri Ramlal Virajman  and Asthan Sri Rama Janma Bhumi Ayodhya through Shri Deoki Nandan Agrawal, who incidentally was a former High Court judge and resident of Allahabad. The worshippers’ suits are representative actions (O.8.R.1 under Civil Procedure Code) and the Court always has power to order general notice to all the worshippers and implead parties whose presence the court thinks as necessary.

Identifying the representative body on the side of Muslims is not difficult, for they are already before court. The Hindu Samaj has no such representative body. The persons who brought the structure down and delivered the denouement were a nameless crowd; hooligans to some; if even heroes to the eyes of some. They cannot be surely called to the table. The stakeholders are persons who are the chosen representatives of the dispute who want a solution. Hindu outfits that have evinced no political ambition and who have no clout in the corridors of power shall also be the stake holders to design the system. Representatives of Ramakrishna Mutt and Aurobindo Ashram that owe their institutional origins to Swami Vivekanand and Sri Aurobindo, the very names that ought to instil down the order a swing away from narrow sectarian approaches could be invited to participate. The Supreme Court which is seized of the matter itself could identify the stakeholders and help them design the process.

Systems design to indicate process involved for carrying dialogue
If adjudication through courts or arbitration is not ideal, a third party neutral or body of neutrals that the stakeholders agree will start the process. Normally, the parties themselves decide on the mediator. It is expected that all the information given at the session is confidential. No part of the statement in the process of dialogues shall be used as evidence in any court of law. Given the complexity and enormity of the dispute, the person or a body of person shall be such whose neutrality is impeccable and stature, colossal. The person that heads the panel shall be just not a religious head belonging to any denomination but a global spiritual leader, whose respects our culture in all its beautiful diversity. The Dalai Lama could be a great name to reckon. The dialogue will not be merely on facts pleaded and documentary evidence adduced but will also be on issues of law. Convening the parties to the dispute and setting a time frame will be the task of the panel of neutrals. The respective parties will have the benefit of legal advice at the negotiating table and the statement of law aired freely, will help the parties refine their options. The systems design will include suggestions if the panel could claim neutral opinion on points of law based on the points of disputes Or, the Supreme Court may itself volunteer to give written opinion on the points of law jointly formulated by counsel to the panel for helping the parties to carry forward the dialogues. The brainstorming will be in every bit of options available. The process will match the categories as: what ought to be considered; what may be considered; even what parties are not sure if they should be discussed or not and what both parties are unanimous that they shall not be discussed. They will result in a consideration from the ‘surely must have’ ones to ‘issues of doubt’ to ‘seemingly impossible’ ones.

Historical revisionist exercise is dangerous
We cannot engage in historical revisionist exercise in re-building temples and demolishing places of worship of other religions. It is a fact of history that the Moghul Rulers practised Islam and East India Company and later the English’ direct rule allowed Christian missionaries to proselytise and propagate their religion. The French’ and the Portuguese’ rule in different pockets of India also secured converts from the local populace to Christianity and their modified forms of worship. What if there are persistent demands for demolition of churches and mosques on actual or assumed stand that in any existing Hindu place of worship, there was a church or mosque? Take, for example, the demands that already exist for relocation of mosques and ‘restoration of temples’ at Mathura and Varanasi. A perfectly documented history is the private diary of Ananda Ranga Pillai (Volume 2, 1746 AD), Chief Dubash (translator) to Governor Dupleix of Pondicherry, where he records to the minutest detail of how a Shiva temple was demolished and a Church consecrated in the very same place. The Church is situate is Mission Street at Pondicherry where ardent Christian worship and Sunday Mass are conducted regularly. Imagine, the upheaval it could cause if there is a demand for restoration of the temple at the place, citing the Ayodhya example. The whole exercise must commence from the accepted premise built on factors that (i) Ayodhya uniquely presented an ever ranging dispute running to several generations about the ownership and its nature of user; (ii) at the time of India’s freedom when the will of the people of India prevailed and we gave to  ourselves a written Constitution agreeing to be governed by rule of law through parliamentary democracy, there existed no dispute for restoration of temple in any court other than at Ayodhya and (iii) what happened on 6th December 1991 by the demolition of the disputed structure was an act of vandalism, never to be repeated with demand for construction of any other place of worship in the place of any other form of worship. If the Centre gives assurance that it shall protect all ancient places of worship against vandalism and against conversion of any place of worship from one religion to another, there is simply no reason why the idea of negotiated settlement through a non-adversarial, non-adjudicatory conciliatory process will not be acceptable to all parties.