The Ram Janmabhoomi issue has been in the forefront for quite a few months before the impending elections. The Supreme Court has travelled a long distance from treating the matter as one of title disputes involving a complex set of sentiments, including religious ones. It is not clear what prompted the court to opt for an arrangement which may move things from a purely legalistic position to a domain of many forms of reactions and sentiments.
Mediations that have taken place in the past have failed. It is worth analysing the pros and cons of the decision of the court to appoint a panel of mediators to resolve the Ram Janmabhoomi-Babri Masjid (Ayodhya) dispute.
The idea of mediation was mooted in 2017 by a Bench headed by the then Chief Justice JS Khehar. The Bench had suggested that the issue was much larger than ownership of land and that mediation might help in “healing relations”. After Justice Khehar, Chief Justice Dipak Misra insisted on treating it as a land dispute only.
Now, the court has again brought back sentiments into the legal discourse. This wavering and ambiguity in the court has accompanied the case all along. Sentiment is a problematic word, especially when there are two political sentiments competing with each other. This is not a question of the majority community feeling deprived of a temple at the birth place of Lord Ram. On the other hand, it is a majority political ploy masquerading as religious sentiment. This is a ploy to subjugate the minority Muslim community further by playing a symbolic game. In this game, the numbers are stacked against Muslims. One extreme view is that the minority must understand the ‘historical injustice’ done to Hindus by their ancestors and atone for it by leaving the site for them.
When accepting the notion of contending sensitivities, we must not ignore the sentiments of those Hindus who do not consider this issue as one involving their identity. There are also many Hindus who would not like a temple to come up in Ayodhya by displacing a mosque.
How will these myriad views be represented in the mediation process, which began on March 13 in Faizabad? By creating two neat sides, the court has validated the claim of the Rashtriya Swayamsevak Sangh and its political arm, the Bharatiya Janata Party, and weakened the position of the Hindus who contest this division.
The Ram Janmabhoomi-Babri Masjid issue was never religious. The BJP has always included the promise of constructing a Ram temple in its election manifestos over the years. LK Advani’s 1990 Rath Yatra not only led to the eventual demolition of the Babri Masjid but expanded the national footprint of the BJP. The campaign was aimed at denigrating Muslims and entrenching their ‘foreignness’ in the minds of Hindus by using the figure of Babar.
As the court has itself digressed from the brief before it, one can ask why it did not think it necessary to first address the criminality of an act in 1949 when an idol of Lord Ram was placed in the Babri mosque on the night of December 22, which happened much before the demolition of the mosque itself. Also, the bloodletting accompanying the demolition of the mosque cannot be dissociated from the act. Why is it that the issue of sentiments is given primacy and not the criminality of the act when the court is equipped to address the latter? Why is the court wading into the mediation route yet again after so many years of hearing the matter as an adversarial adjudication?
Further, the eight-week time limit for the mediators coincides with the election campaign period and ends just before voting ends. It is not difficult to see which party will use this in its favour. If the mediation committee fails to come to a consensus, this could be used to fuel anger in Ayodhya once again against both Muslims as well as the court. It is not just the idea of mediation but the selection of mediators that casts a doubt on the process.
Justice FMI Kalifulla is a retired Supreme Court judge and senior advocate Sriram Panchu has been instrumental in making mediation a part of India’s legal system. The question relates to Sri Sri Ravi Shankar’s qualifications as a mediator. He has not only flouted laws himself but has espoused the cause of a temple at the disputed site on several occasions. He is the one who said we will have a “Syria in India” if the Ram Mandir issue is not resolved soon. By no standard does Mr Ravi Shankar qualify to be a mediator. A mediator is expected to be open-minded and fair; and if we go by his controversial statements, it looks doubtful whether he will be treated as “independent”.
The court, while resorting to mediation, has deferred the finality of the judgment to a much later date. This suits the present election-related charged atmosphere. An experiment is being undertaken by the apex court for settlement by mediation of a complex set of facts and legal issues. This may give a human and healing touch when the court indicates its hopes for a successful mediation. Mediation is new to the normal adversarial court room atmosphere. Whichever way one looks at the problem, finally constitutional morality shall be a touchstone on which respective claims are to be tested.
Strict principles of constitutionalism require control over exercise of government or private power to ensure that it does not destroy the democratic principles upon which it is based. The essence of constitutionalism lies in a significant balance model, calling for a rainbow effect of different categories of views. In trying to uphold constitutional morality will be the last limb of the exercise. The court has embarked upon a considered course, certainly inspired with some hopes and expectations from that medium.
Reactions to the steps taken by the court have been a mixed one. Despite the difficulties in the path of mediation, let us hope that the present trend advances towards a solution to the longstanding problematic issues. While the mediation goes on in insulated and isolated quarters, it is only after the general elections that the final outcome will emerge. Meanwhile, views must be vigorously expressed representing all interested parties and there should be a public debate on the feasible terms on which the settlement could be arrived at. But this requires organised study, activity and expression. Difficult days are ahead and no section can be immune from their impact and significance. The wider the base of expression, the more meaningful would be the mediation.
If intentions are not tainted with prejudices, the settlement by mediation is to be welcome. The skill of mediators should not be clouded by their own built-in bias, if any. To the committee of mediators, a great task has fallen on their shoulders. The outcome of the settlement and its progress towards a final decision are not without impediments. In this atmosphere, let us hope that the mediation has some meaningful result towards a solution of the issue. But to make it participatory in the fullest sense is the requirement of a public debate on different feasible solutions. This is not confined to any section of the society and concerns us all!
(The writer, a Senior Advocate, is a former All India Service officer, a former diplomat, a former editor, a former President of Orissa High Court Bar Association and a former Advocate General of Odisha. jayantdas@hotmail.com)
