The recent observation by Chief Justice of India J.S. Khehar that the contentious, nearly 70-year-old Ram Janmabhoomi-Babri Masjid dispute should be settled out of court not only surprised the parties involved but also the legal community at large.
The CJI’s offer to mediate the settlement talks himself is particularly startling since anyone acquainted with the law on mediation can vouch for the fact that a mediator who seeks to mediate a dispute cannot adjudicate the same matter if the mediation fails. What is more, his comment – “this was a matter of sentiment” – gives away his mind on the merits of the case. The issue in the suit is not whether Lord Ram was born at the disputed site, but about whom the land belongs to. Sentiment and matters of faith are incapable of judicial resolution. What is more, the comment came on the mention by an outsider to the litigation and in the absence of the litigants. This makes one believe that Justice Khehar’s remark was not well thought out and that the ‘mediation’ attempt is doomed to fail.
The rules of the court in dealing with mediation may not strictly be attracted in this matter but do provide some guidance. To have any meaning, mediation requires a level playing field. Before going into the complexities of the present case, it is important to examine the law on mediation in India.
The concept of mediation – or the settlement of disputes with the parties sitting opposite each other – is almost as old as human civilisation. The word ‘mediation’ comes from the Latin word ‘mediare’, which means ‘to be in the middle’. According to Black’s Law Dictionary, mediation is defined as “a method of non-binding dispute resolution involving a neutral third party who tries to help the disputing parties to reach a mutually agreeable solution”. In other words, it is a non-adversarial dispute resolution mechanism, facilitated by a neutral mediator, and is a well-recognised method of alternative dispute resolution (ADR) all over the world.
In this case, the question is, do we have a “neutral third party”? Given the kind of polarisation between the two sides and the communities they say they represent, where can we find a neutral third party? With Yogi Adityanath‘s appointment as chief minister of Uttar Pradesh compromising secularism itself, how can neutrality be guaranteed? I am assuming that the offer of the CJI to mediate was not intended to be taken seriously. Neutral as he may be, he could hardly be expected to mediate as well as judicially decide the matter.
The idea that mediation is one of the important mediums of ADR has gained ground in the last 40 years, especially after what is known as the Pound Conference in 1976 in the US, a national conference of jurists, lawyers and educators. At the conference, a specific resolution was passed to encourage ADR, especially mediation. Owing to the huge backlog of cases pending in the courts and the time, expenses and technicalities involved in formal litigation, renewed emphasis has been placed on ADR and how to make it effective. But mediation of a dispute that has been pending for over 70 years and has reached the Supreme Court is an inconceivable idea. Mediation normally happens before judicial adjudication, not after.
Section 89 of the Civil Procedure Code deals with the issue of mediation in civil suits. It has been held by the Supreme Court that it is a badly-drafted section, but that apart, what is important is that the rules emphasise the neutrality of the mediator.
Some of the rules that point to this emphasis are
- rule 8 (the mediator has the duty to disclose certain facts pertaining to her impartiality/independence),
- rule 16 (the role of mediator is to facilitate voluntary resolution of dispute between the parties and not impose any settlement terms on the parties),
- rule 17 (parties alone are responsible for taking decisions) and
- rule 27 (that lays out the ethics to be followed by the mediator).
The mediator is thus the guardian of the process and the protector of its sanctity. Any indication of either conflict of interest or partiality would nullify the whole mediation proceeding.
Other relevant rules, including rule 19 (parties are to act in good faith), rule 20 (on confidentiality, disclosure and inadmissibility of information) and rule 21 (on privacy) focus on the completely confidential nature of the mediation proceedings. What the parties say or agree to in negotiations cannot be used against them in any court of law.
Balance of power
As stated in Rule 27(10), a key element of mediation is the recognition of the principle of self-determination by the parties. The mediation process relies upon the ability of parties to reach a voluntary, undisclosed agreement. Integral to this is the power balance between the parties in the mediation.
Mediation should not be recommended when there is a serious power imbalance between the position of the parties, in which a fair negotiation is not possible. When there is a significant power difference between the parties, the fairness of the proceeding is called into question, owing to apprehensions of one party dominating the process and the settlement agreement being one-sided. Thus, the issue of power relations in mediation is critical. The two central elements of mediation are the neutrality of the mediation and the voluntary consent of the parties. In case of power imbalance, parties may feel that they cannot make real and free choices and are being coerced into a settlement, thereby tainting the entire proceeding.
It is well known that there have been five prior attempts at settlement talks between the two parties, but in all cases, the talks have failed. The present appeal before the Supreme Court is an appeal against the Allahabad high court judgment delivered in September 2010, whereby the high court had divided the disputed 2.77-acre land between the Sunni Waqf Board, the Nirmohi Akhara and the Ram Lalla. Despite the sentiments of both communities, the issue at the end of the day is a title dispute, which requires judicial determination.
Free and frank negotiations, with a view to reach a fair settlement agreeable to both parties, are almost impossible in this case in the current atmosphere of majoritarianism in the state, where the head of a Hindu religious math is the chief minister. Adityanath has a declared vested interest in the dispute and has often reiterated his commitment to building the Ram mandir. Even otherwise, it is not logical to expect that negotiations between a majority and a minority community would be free and fair, without any attempt at overt or covert coercion and pressure.
The CJI, given his legitimate concern for an expeditious outcome, would do well to set up an appropriate bench of carefully-selected senior judges to decide the dispute.
Perhaps memories of the Union Carbide case should have informed his comments. A carefully crafted settlement negotiated in secret between the Union of India and Union Carbide was not only challenged by the victims, but set aside by the Supreme Court itself. Apart form the pittance paid to the victims, the criminal proceedings were also to be dropped, according to the settlement. The Supreme Court, after accepting the settlement, was compelled to set it aside.
Indira Jaising is a senior advocate at Lawyers Collective.