The Supreme Court will announce its decision on whether to refer the Ayodhya title dispute to mediation at 10:30 am on Friday, 8 March. It will also be announcing whether the writ petitions filed in relation to the case – such as Subramanian Swamy’s petition for Hindus to be able to pray at the disputed site – will need to be heard by the current five-judge Constitution Bench or a smaller number of judges.
The option of mediation was suggested by Justice SA Bobde during a hearing on 26 February, and the bench then directed the parties to indicate whether they’d be willing to try this as an option instead of court proceedings. In the next hearing on 6 March, the Muslim parties, including the Sunni Waqf Board, indicated their willingness to try it.
However, several Hindu parties, including the representative of ‘Ram Lalla’ (the god Ram) objected to the idea, saying this was not just a property dispute and the public may not accept any compromise arrived at by the parties.
Will All Parties Agree to Mediation?
Another bone of contention was whether all the parties would need to agree to mediation before the Supreme Court could order it to take place. Rajeev Dhavan, representing one of the Muslim parties, insisted this wouldn’t be necessary, and that there was no bar on representative suits being decided via mediation.
Solicitor General Tushar Mehta (representing the State of Uttar Pradesh) urged the court to be careful with this decision, and only refer it to mediation if the judges thought there was a genuine chance of a successful settlement.
Mehta’s involvement was protested by Dhavan, who pointed out that the State of Uttar Pradesh had said it wouldn’t play a role in the case.
What the Hindu Parties are Arguing
There was a lengthy debate on whether ‘representative suits’ like this one, where some of the parties represented large groups of people or religious communities, could even be referred to mediation. The Hindu parties argued that the result of such a mediation may not be binding on the entire community they represent, which would make the exercise pointless.
They also claimed there would need to be public notice before such mediation (which would allow other ‘interested’ individuals to make themselves party to the mediation, delaying and complicating the process).
Justices Chandrachud and Ashok Bhushan asked several questions of the Hindu parties and seemed to indicate that mediation should be possible.
If the judges decide to refer the matter to mediation (likely court-monitored mediation), then the proceedings will not take place in the formal, adversarial setting of the courts.
Instead, the parties will all make submissions to a mediator or, more likely, a panel of mediators, with less procedural formality. The mediators will hear each side, and try to find a reasonable compromise that can then be agreed on by all the parties.
The judges asked the parties to submit possible choices of mediator – suggested options have included former chief justices of India Dipak Misra and JS Khehar (who had both conducted brief hearings on the matter) as well as retired SC judge Justice AK Patnaik, who recently monitored the CVC’s investigation of CBI Director Alok Verma. It is unclear at this point how many mediators the court is thinking of appointing.
Another aspect the court will be expected to pronounce on is the extent to which the media will be able to report on the mediation proceedings. The judges said confidentiality would need to be respected, and indicated they might not allow the media to report on it.
Alternate dispute resolution is often kept confidential, though it is unclear whether the Supreme Court can impose a ‘gag order’ on the media regarding the mediation proceedings.
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