RECONCILING THE NON-CONCILIATORY: MEDIATION, A HARBINGER OF PEACE
– Vatsal Raj
This paper is an effort in scholarship, attempting to highlight the various facets of the process of mediation as interposed in a conflict resolution scenario. The paper also addresses the essential issues of law involved and raises more questions than it has answers to. The author firmly believes that the aforementioned remains to be the primary function of scholarship, that is, to ask the correct questions. The paper has been divided into three distinct parts. The first provides a cutting insight into understanding the complexities of the dispute. The second makes a case for the applicability of mediation and the third reflects upon its advantages. The short conclusion is hopeful of the future, yet takes the leave of the dear reader with an unsettling question.
“You see things as they are and ask why
I dream of things that never were and ask why not”
-George Bernard Shaw.
LET JUSTICE BE DONE THOUGH THE HEAVENS MAY FALL : AN INTRODUCTION
Ayodhya, literally means ‘land without war’. Ironically, the appropriation of history with regard to the Babri Masjid-Ram Janmabhoomi dispute at Ayodhya, has posed a serious threat to our collective internal harmony for over seven decades now. The human cost has been colossal and as a result the public sentiment and India’s body politic are seeking closure.
Human needs and emotions are at the heart of interests. Quoting the renowned jurist Fali S. Nariman, “Mediation in this case is highly recommended. Perhaps court appointed mediation would be the best option available.” Echoing the same optimism senior advocate Sanjay R. Hegde, Hon’ble Supreme Court opines, “Mediation, in this case, needs to identify, express and discuss those needs and emotions which lie at the heart of the dispute.”
Therefore, the most urgent requirement of present day India is the will and means to put down these instances of communal violence quickly, sternly and sustainably through inter-faith dialogue. This study attempts to establish relationships, define issues and raise questions emanating from the complex yet intriguing interactions between the many a vibrant hue of faith and the black and white letter of law.
It need hardly be added that the author, does not have the answers to all the questions he raises. But most readers will probably be charitable enough to understand that asking the right questions is in itself a useful service. Scholarship which ranges widely in the search for facts, but which then consciously draws back from a conclusion, does not fulfil its highest function. The author has put in all conscious effort, therefore, to arrive at realistic conclusions to find Indian solutions for Indian problems.
The appropriation of history is a continual process in any society, but in ours, a multi-religious one, such appropriations drawing exclusively on communal identities invite endless conflicts. Group identities within an India that has been nurtured by the leadership of the devoutly religious Gandhi and the agnostic Nehru are inherently diverse. The religious temperament and outlook of the Indian people may have been exaggerated by some writers, but it is nonetheless true that religion has been the most powerful single factor in the development of the Indian civilization. The Ayodhya dispute is as old as the independence of India itself. The legal battle between religious identities and often non-conciliatory faiths in Ayodhya began in 1949 as a title dispute. By the 1980s, the case had shot to centre stage, riding a wave of identity politics.
In the early 1990s, the dispute gained popular support and took the shape of a movement, which culminated in the demolition of the Babri Masjid on that fateful day of the 6th of December, 1992. After this violent turn, the dispute over the land progressed through the courts at a glacial pace, with no realistic end in sight. The courts, grappling with over 90,000 pages of oral evidence and balancing archaeological fact with the faith of millions, had a mammoth task ahead of them.
The misconceived notion of secular democracy adopted by most modern democracies, is thoroughly lacking in emotional appeal. Chairman of the Drafting Committee, B.R. Ambedkar’s observations as illustrated in the Constituent Assembly debates regarding the de-emphasis of religion in public life necessitated by the adoption of a secular constitution creating a real life problem, have proven prophetic in the context of modern day India. A secular state seemed to be the most pragmatic solution to the problems of religious pluralism, however, time has proven this wrong.
The careful deliberations in the Constituent Assembly left too many unresolved issues that, in turn, were passed on to the, then nascent, judiciary for resolution. In the Common law world, the judiciary is often invited to resolve complex and politically sensitive subjects. Addressing social and political problems through court cases has many limitations because of the formal setting in which such litigation is conducted and the reified form in which judicial reasoning is cast.
Although India has no choice but to maintain a fundamental unity which is, in fact, forged by a myriad of traditional and modern elements, such optimism invites disbelief when there are glaring inconsistencies between secular rhetoric and political practice. The Ayodhya dispute is posing to be the litmus test for the globally renowned secular character of India, a secular character which presents itself in stark contrast to her neighbours, and its peaceful resolution through inter-faith dialogue facilitated via transformative mediation has become almost imperative for the sustained realisation of harmony among ‘We the People of India’.
The minorities in India are the natural custodians of a secular state. The Hon’ble Supreme Court has proved to be a bulwark against any tendency of the state to restrict freedom of religion. Freedom of religion enumerated in the Indian Constitution as within the scope of Article 25 has been exemplified by the judiciary in terms of religious liberty rather than religious tolerance, and rightly so.
The finer points of difference between two often synonymously used terms, ‘liberty’ and ‘tolerance’ were elucidated by Honoré Gabriel Riqueti, comte de Mirabeau, a French Revolution Leader, in 1789, when he declared, “I do not come to preach tolerance. The most bound-less liberty of religion is in my eyes a right so sacred that the word tolerance which tries to express it sounds tyrannical in itself, since the existence of an authority which has the power to tolerate strikes at the liberty of thought by the very fact that it tolerates and therefore, it would, someday be able, not to tolerate.” The secularism Mirabeau spoke of was in its purest form unfettered by political or pragmatic considerations of a multi-faceted society marked by the heterogeneity of identities.
Montesquieu, in his famous work Spirit of the Laws, argued vehemently against the notion that there ought to be religious uniformity in a state. Voltaire protested furiously against the religious prejudice and bigotry of the day. Rousseau rejected the exclusive and domineering type of religion which hampered the development of social cohesion. John Stuart Mill’s great essay, On Liberty, became a classic statement of liberal creed and buttressed secularism and the freedom of religion.
In practice it is best to imagine the modern idea of secularism as triangle wherein, the individual represents the apex and the religion and state are the sides. The two sides of the triangle maintain their integrity only by the virtue of the third, which separates them, that is, the individual. A thorough reading of the chronology of democratic revolutions the world over would draw the reader to the following conclusion, that is, secularism is surely an inseparable component of the modern liberal democratic state. However, as group identities become more solidified in an increasingly divisive world the presumption as to the primacy of the individual is starting to falter. It certainly leads to a revision of Ambedkar’s iconoclastic liberal view that the individual, and not the group, was the basis of India’s Constitution.
The group is not only an important feature of Indian secularism but contains the capacity to assert itself in a multiplicity of social, political and legal arenas. This should help us to refine our intuitions about the kind of expectations we can have of Indian secularism. It is important that India’s rulers-no less its judges than any others-understand these unique features of India’s experiment with secular democracy.
The Hon’ble Supreme Court, on 8th March 2019, being mindful of the vicissitude displayed by the Ayodhya dispute and cognizant of its metamorphosis, wherein it has ceased to remain a mere land dispute, to become one involving the faith of millions, referred it to court monitored mediation in the case of M. Siddiq v. Mahant Suresh Das . The court appointed the former Supreme Court judge, Hon’ble Fakkir Mohamed Ibrahim Kalifulla as the chairman of the mediation committee, with spiritual leader Shri Shri Ravishankar and mediation expert and senior lawyer Sriram Panchu, as its members.
That fateful date, 15th of August 2019, as appointed by the Hon’ble Supreme Court for the parties to reach a resolution, has the attention of the world. It is in the national interest that there is no loser at the end of this process so that the final outcome does not leave behind any acrimony in anyone. The following section provides a detailed illustration of the urgency and need of a process of mediation to permanently resolve this increasingly unique and precarious dispute.
Justice turns the scale, bringing to some learning through suffering : The need for Mediation in the Ayodhya Dispute
THE BALANCING OF RIGHTS
The courts cannot order to believe. The British, while instituting the first uniform and formalised system of judicial governance pan India, understood this inherent limitation of the black and white letter of the law. Law attempts to govern man but was in a thoroughly de-humanised state at the time of its inception. Therefore the British began by seeking the advice of religious pandits and maulvis (Hindu and Muslim learned wise men respectively), who acted as experts advising the courts on matters of faith. But these often self-styled experts came in for much criticism, and recourse to them was abolished in 1864 .
Concurrently, the British had also commissioned the compilation of many treatises on the ancient texts and contemporary customs of various religions, sects, and geographic areas. Subsequently, the courts took over completely, continuing their alleged fidelity to the essence of the personal laws but seasoning their quest for authenticity with the imperatives of State policy. Former Justice of the Hon’ble Supreme Court and renowned jurist Justice S.B. Sinha stated, that the primary objective of the judiciary in conjunction with the State policy is the maintenance of law and order. To achieve this paramount function, the judiciary engages in the delicate pursuit of balancing of rights. Courts are often required to ‘balance’ competing interests.
The scales of justice are a powerful image in the law. Discretionary decisions by courts commonly involve weighing the benefits and detriments of a potential outcome. But this is usually done on the assumption that the interests or considerations to be weighed are in some way reasonably commensurate. We can only measure physical weights on a scale, but we cannot measure rights and we cannot measure values. Mediation attempts to solve this problem by assuaging the conflicts through a mutually agreeable compromise.
Justice S.B. Sinha concludes with his observations in the favour of the apropos applicability of mediation and methods of alternative dispute resolution to overcome this obstacle. Settlements often emerge without struggle, when underlying emotions are assuaged. A dialogue between the parties involved in the dispute regarding their conflicting interests and its successful resolution through mutually beneficial comprise ensures a sustainable resolution.
THE FORMALISED JUDICIAL SYSTEM
The Ayodhya Dispute is a problem for which there exists no clear parallel in western or Indian constitutional history. The strength of religion lies in the conscience of the people and not the laws of the government. We must catechize our collective conscience at this juncture, even though the Constitution provides enough textual justification to give social reform an overriding priority, is such a judicial stance necessary or even salutary? It certainly carries symbolic implications, portraying India’s quest for social justice in uncompromising terms. But the struggle for social justice is not fulfilled by constitutional rhetoric. Rather, it calls for cooperation from India’s many religions.
The aftermath of the Shah Bano case serves as both warning and instruction. This need for caution however, poses a unique dilemma to our modern judiciary system. Are the courts even fit to deal with cases of faith and belief involving millions of beliefs? Indian society presents numerous awkward judicial issues. Are followers of the Saint Kabir Hindus? How many kirpans could a Sikh wear? Was the prevention of cow slaughter just a Hindu attempt to deprive Muslim butchers of their livelihood or also an interference with an essential practice mandated by the Holy Koran?
What were the judges to do with these questions? What ‘traditions’ were they expected to examine in order to determine whether any particular aspect was more important than the other? Confronted with these problems and aware that some litigation is inspired by social quarrels rather than deeply felt sentiment, the Courts have refused to consider seriously some of the questions brought before them. Emphasizing common sense, they have often sought to diffuse such situations by mediating acceptable compromises through court ordered negotiation between parties with conflicting interests.
This self-inflicted judicial restraint is further amplified by the fact that there exist no indicators as to what kind of evidence should be considered authoritative, no rules of interpretation, no emphasis on detailed research, and no requirement to consult authoritative exponents and material. Some judges are careful about their consultation of texts.
The highest court of judicature in the Ayodhya dispute cannot afford to throw caution to the winds, that so long as some kind of inquiry into religious tradition takes place, the manner and form in which these inquiries are to be conducted have not been elaborated by even the highest court of the land, the courts may dwell into such matters of faith and religion not only at their peril but at the peril of those millions involved. This has led to the creation of a climate in which the limitations have acquired an ex cathedra character and have become more fundamental than the right.
Although the Hon’ble Supreme Court has emphasized that rights, rather than limitations, are fundamental in the interpretation of civil liberties, the courts have generally expanded limitations and marginalized rights. The country’s foremost lawyer, Nani A. Palkhivala, remarked in 1993, rather prophetically, in response to the government’s move to receive a desired advisory opinion from the court, “The courts can decide only questions of fact or of law. They cannot decide, and should never be called upon to decide, questions of opinion or belief or political wisdom.”
The constitutional secular character of our nation is at risk, the possibility of a reversal in judicial opinion regarding the true meaning of religious liberty shall prove regressive to a liberal and progressive democracy. The practice of adopting religious tolerance while shunning the core principles religious liberty is the cost that our nation has had to pay for last seven decades for the lack of a better alternative to resolve disputes of faith and religion. This is where professional and active mediation comes in, to remedy this complication.
THE JUDICIAL ATTITUDE
The idea of court monitored inter-party negotiation to reach a compromise in the matters involving faith is not novel. The mere land dispute had, and continues to have, emotional overtones that threaten our collective future as a secular force in an increasingly divisive world. The active recognition of the need for healing and growth of understanding through the peaceful resolution of this legendary dispute has often been exemplified by the Hon’ble Supreme Court. The outlook characterised by pitting the two parties, being the flagbearers of the faith of millions, as adversaries, is antithetical to the very idea of dispute resolution. Especially when the nature of the conflict is as sensitive and its amicable resolution an imperative.
The shift in judicial attitude, in recent times, which ultimately precipitated in the form of a court ordered mediation, commenced on 21st March 2017, when Justice Kehar remarked, “Give a bit, take a bit. Make an effort to sort it out. There are issues best decided jointly. These are issues of sentiments and religion. The court should come in the picture only if you cannot settle it.” The courts finally recognised the sentiments of millions attached to the dispute on 5th December 2017 when the court opined, “judicial notice taken of the fact that the present case being the Ramjanmabhoomi/Babri Masjid case, is no ordinary arising out of ordinary suits.”
In the process of interpreting and perceiving the dispute the court identified healing and collective understanding as the raison d’être of its judgement. The Chief Justice of India, Ranjan Gogoi, therefore, referred the case for mediation saying, “the case was not about property, but about the mind, heart and healing-if possible.” The court on the 8th of March 2019 stated, “We have suggested to the parties that during the interregnum a court appointed and court monitored mediation with utmost confidentiality could be initiated to bring a permanent solution to the issues raised in the cases.”
The paragraph concludes, “In doing so, we have also kept in mind the mandate of Section 89 of the Code of Civil Procedure, 1908.” The aforementioned shift in the collective conscience of the judiciary and the jurists is indicative of adopting processes of mediation as the most viable alternative. The reasons for its apropos applicability have been illustrated in the following section.
Compromise is the best lawyer : Negotiating the principles of Faith
Mediation of faith, as a peaceful way of dispute resolution, was practiced actively in the Roman, Confucian and Buddhist and South Asian communities, in fact the mediator was regarded as a sacred figure, the bringer of peace in the community. One must be drawn to think, the problems of man are as old as man itself. In the absence of the institution of a formal system of dispute litigation these problems were resolved through a system of negotiated compromise. As noted author Christopher Moore states, “Mediation is essentially a negotiation that includes a third party who is knowledgeable in effective negotiation procedures and can help people in conflict to co-ordinate their activities and to be more effective in their bargaining.
Mediation is an extension of the negotiation process in that it involves extending the bargaining into a new format and using a mediator who contributes new variables and dynamics to the interaction of the disputants.” To that end, Section 89 of the Civil Procedure Code mandates that in all cases where it appears to the Court that an element of settlement may be acceptable to the parties, the court might inter alia refer the parties to mediation. The mediation movement in the South Asian sub-continent, especially India, has gone full circle, from traditional methods of community dispute resolution to the present day revival of more formalised mediation.
THE PRINCIPLES OF MEDIATION
Mediation is intrinsic to anticipating difficulties between parties before an irresolvable conflict emerges. Complaint handling and management is a conflict prevention mechanism designed to handle a complaint effectively at first contact, minimising the possibility of a dispute. One term for this role is ‘dispute preventer’ . This allaying characteristic is key in the matters of faith. Non-adversarial processes, responsiveness, self-determination and party autonomy and confidentiality form the essential principles of mediation.
– Non-adversarial procedures treat the parties as collaborating in the construction of an agreement and are in stark contrast to litigation which is explicitly adversarial in that each party attempts to subject the other to its views. Mediation is designed to conclude with an sustainable agreement rather than a winner and loser. Some of us refuse to believe that divinity is enhanced or diminished by a possessory title over a parcel of land.
– Hence, these principles of mediation are aligned with the objectives of religious liberty in as much as allowing each party to compromise on certain secular aspects of their religion while protecting those held sacred. This is reflective of the responsive and collaborative nature of mediation.
– Party autonomy and self-determination assume a fundamental role in resolution of issues of human belief. Should a court of law adjudge what a man of religion considers essential for the satisfaction of his belief? To arrive at a definitive meaning of religion is a gargantuan task in itself and to go as far as drawing parallels between belief and religion, almost futile, given the lack of perspicacity marked by subjectivity. Therefore awarding responsibility of the outcome to the parties themselves has proven to be essential to all mediation processes.
– Confidentiality is indispensable in a dispute marked by over-politicisation. The confidential character of the court ordered mediation in the Ayodhya dispute is therefore of utmost importance to ensure non-interference of political motivation and reduce, if not eradicate, any misinformed interventions by a third party.
FACILITATIVE AND TRANSFORMATIVE MEDIATION
Evaluative mediation is considered to be an oxymoron in the ADR community.
The neutrality of the mediator must satisfy a facilitative and not an evaluative, calculating function. The mediator acts as a conduit of information and a barrier and a sieve for emotional and psychological issues that may underlie a dispute, the mediator can assist in giving the negotiation what it had lacked — neutrality and objectivity. In evaluative mediation the mediator plays a directive role, giving the parties less flexibility in determining the solutions by providing an assessment of the likely outcome.
This characteristic would prove fatal in the Ayodhya dispute and therefore employing a fine tuned mix of transformative mediation wherein the mediator plays a psychologist and teacher in empowering parties to resolve the dispute on their own, enabling parties to engage in mutual recognition and moral growth and facilitative mediation marked by a purposeful empowerment of the parties, seems to be the most viable option. A focus on interests, not on positions, is imperative.
The distinction between interests and position is best described in the seminal book on principled negotiation, by, Rogers and William, summarising the distinction as such, “Your positions are what you want. Your interests are why you want them.” Therefore the emphasis during this landmark court monitored mediation must be laid on satiating the interests while mollifying the conflicting positions of the two communities. Mediators see conflict as a fact of life that when properly managed can benefit the parties. The benefits of conflict resolution include the opportunity to renew relationships to mitigate differences and make positive changes for the future.
A Ray of Hope: The Conclusion
The court described the dispute as a ‘festering wound’ which has touched the religious sentiments of two of the biggest communities for decades and led to multiple rounds of communal violence. If we are to boast of a living constitution, we should all work to convince by reason. If we are to retain the confidence of the communities we serve, we must dwell deeper into the colour of faith. The fundamentals of India’s secular polity, public confidence in the court and the court’s own prestige are at stake.
We, however must ask ourselves, in this process, should the basic point of legal right to the land become obfuscated and provide an opportunity to justify what was a rank criminal act, the demolition of the Babri Masjid? The road to peace is long but the time has surely come to take the first step. As the subcontinent and perhaps the world draws their attention to that fateful date of the 15th of August, it is in the interest of the dignified secular character that we pray, devoutly, and support a peaceful, sustainable and understanding resolution and shared future for our people.