At the outset of the Ayodhya hearing on Wednesday, it was contended that in view of Order VIII Rule 4 of the CPC, the instant dispute being in the nature of a representative suit, no part of the claim could be abandoned and no compromise could be effectively recorded unless the Court has given notice to all persons so interested.
The Supreme Court five-judge bench had assembled to decide on the reference of the Ram Janmabhoomi-Babri Masjid dispute for mediation.
Justice Ashok Bhushan clarified that the said provision would apply in the event of court proceedings, when the court decided the matter, and not on mediation.
“If the Hindus are not ready for mediation, then nobody has the right to negotiate. It is a sentimental issue and there is no position to compromise”, it was insisted.
“When the court orders mediation in a matrimonial proceeding, it is with the understanding that it may result in either divorce or conciliation . The outcome is not in the mind of the court. You are just saying that we can’t compromise so it may be not be necessary…”, interjected Justice S. A. Bobde.
“Are you saying it is a failure if it is attempted even before it is attempted? That is not fair. When the court is ordering mediation, we are not led by the assumption that someone will give up something or that someone will get something. We know the dispute is not just about property or an arch of land but about sentiments and faith. Don’t think we are not conscience of it. We are aware of the impact and the gravity of the dispute and its effect on the body politic of this country. Apart from the law, we are inspired by these factors in ordering mediation- the Mind, the heart and the feelings. We don’t understand how it is being rejected even without attempt…We have also read the history. You don’t have to argue on the history to postpone all this. You know what you are doing…We have no control over what happened in the past, whether there was a temple or a mosque. We can only undo what exists in the present, and that is the dispute!”, continued the judge.
Placing reliance on the 2010 apex court decision in M/S Afcons Infra. Ltd, Senior Advocate Rajeev Dhawan (for the Sunni Waqf Board) argued that the consent of the parties is not a prerequisite for a reference to mediation-
“Arbitration and conciliation require consent. But in the other forms of ADR, like Lok Adalats, it is not required. The Nature of the mediation process is not affected by an agreement of the parties or the lack of it. It is not binding, so you are still free”
“It is not necessary for the court to formulate the terms of settlement. Your Lordships may merely describe the nature of the dispute in a sentence or two”, he continued.
“As for the selection of the mediator, there could be a well-trained mediator. Or alternatively, the parties may nominate the mediator”, suggested Dr. Dhawan. Justice Bobde added that there could also be a panel as in the case of arbitration.
The Senior Counsel advanced that even the original record need not be sent to the mediator, unless the process is under the supervision of a judicial officer.
He advanced that the proceeding may be held in-camera, the parties being instructed to not divulge any details.
Agreeing that confidentiality is a mandatory condition, Justice Bobde weighed in,
“Now take a case where there is a matrimonial dispute which is sent for mediation. Or a case of partition of property between brothers. When is confidentiality breached- when someone known to the party talks. It is important that it is not printed in the media or commented on while the process is on. A gag order is not our intention or the point. But It should not be reported while the process is on because it is simple to make some comment attributing some motive to someone”
Venturing that the concerned counsel ask clients to not make any revelations, Dr. Dhawan pointed out that there may even lie an action of contempt for a publication in respect of an in-camera proceeding if the court has so prohibited.
At this point, Justice D. Y. Chandrachud posed a question as to how a compromise between the parties could be effectuated to dispose off the dispute- ” this is a not a dispute between just the parties, but a wider dispute between communities. How will we bind them?”
“You can’t…you will bind when the judgment comes if mediation fails”, conceded Dr. Dhawan.
“One point of mediation could be- where? The Hindus on this side or the Muslims on this side? An area has to be considered”, he continued.
In the light of section 89(2)(d) of the CPC, which provides that where a dispute is referred for mediation, the court shall effect a compromise between the parties and shall follow such procedure as may be prescribed, Justice Chandrachud reflected, “The desirability of a negotiated outcome cannot be understated. But what if there is no compromise? That is the issue. For adjudication, it is this side or that side, but not for mediation”
On the argument of the proceedings being representative in nature, Justice Bobde noted, “Whether it is mediation or a court proceeding, if a party is recognized as representative of a community, it will bind everybody. If it is good for one, it is good for the other”
“Beyond rule 8, if there is a difficulty of non-consensus, it is all between the parties and nobody else”, added Dr. Dhawan. “And parties would include those who they have been allowed to represent”, clarified Justice Bobde.
At the Hindu side, an objection was raised on account of Order XXIII Rule 3B of the CPC, which stipulates that no compromise shall be entered into in a representative suit without the leave of the court and that before granting such leave, the Court shall give notice to all such persons as may appear to it to be interested in the suit.
“Suppose there is a decree, it will bind all? You know what happens to a compromise when it is presented to the court- it becomes a decree…After a public notice, we can still appoint those who would represent either side. Will it then not bind those who are not party to the proceeding?…A decree passed in compromise is no different from the one passed in judgment. There is no defect or lacuna in the law that it can’t be done!”, observed Justice Bobde.
While the other faction- the All India Hindu Mahasabha headed by Swami Chakrapani- batted for mediation, On behalf of the Akhil Bharat Hindu Mahasabha, the need for a public notice was reiterated.
Justice Bhushan asserted that that formality applies not at the appellate stage but for deciding the suit, which the Allahabad High Court should have considered.
Opposing a reference to mediation, Senior Counsel C. S. Vaidyanathan, for Ram Lalla, advanced that the contentious issue being which is the Ram Janma Sthan, the present matter is non-negotiable. “In a mediation proceeding, nobody can agree to some other place as the birth place. An alternative place for the mosque can be considered. We are even prepared to crowdfund it”, he said.
“You are assuming that this is not a point of view you can put forth in mediation. You can!”, assured Justice Bobde.
Indicating the definition of ‘decree’ in Section 2(2) of the CPC, Senior Advocate Ranjit Kumar (representing Mahant Suresh Das) again argued that if a decree is to be binding, in a representative suit, the question of mediation does not arise.
“It doesn’t arise because settlements can’t be effected without involving others? The compromise can’t be made a decree without notice to all?”, asked Chief Justice Ranjan Gogoi.
As Solicitor General Tushar Mehta sought to make submissions for the state of UP, Dr. Dhawan opposed him vehemently, saying that it is “unacceptable”, that the SG appears for the statutory receiver, that the state had initially said that it is not interested in the dispute.
“I am not on merits. Even if it appears that there are elements of settlement, the state thinks that considering the facts, the nature of dispute and the possible fall-out, it will not be advisable or prudent to take this path”, submitted the SG.