THE Indian supreme court’s order appointing three members as a mediatory panel to resolve the 70-year-old Babri Masjid dispute flouts every established rule on the process of mediation. Mediation must be accepted by both sides; the mediators must also be acceptable to them; they must be free from any bias.

In the present case, the supreme court appointed mediators largely on its own authority. One of the parties, the Hindu side, flatly rejected, as far back as in 1989, both adjudication by the courts and mediation. It demands nothing short of a transfer of the land, on which Babri Masjid stood, to the Hindus. That would enable them to build a temple dedicated to Ram on the land on which the mosque stood. This peremptory demand drove the Hindu parties to destroy the mosque on Dec 6, 1992. The issue now centres on the land.

The central government sought an advisory opinion from the supreme court on whether Babri Masjid was built on the ruins of a temple. The court rejected the reference holding, rightly, that it would deprive the Muslim side of the defence of limitation that they were entitled to urge. The Sikhs won the concurring case of Gurdwara Shaheed Ganj precisely on this ground, although there was an undisputed deed of waqf concerning the Shaheed Ganj Masjid.

Mediation is bound to fail when one side has refused it since 1989.

However, flouting the supreme court’s ruling, the Allahabad high court did enter into history, archaeology and myth to consider whether the mosque was built on the ruins of a temple. Its order reflected this approach — a tripartite partition of the area with the Hindu side getting the best portion, including the site on which the idol of Ram was forcibly, deceitfully placed in the mosque on the night of Dec 22-23, 1949, mere hours after the namaz was over.

This is the background to the case before the supreme court and its order regarding mediation. It had two courses open to it. It should have considered at the outset whether its earlier ruling had been flouted by the high court and proceeded to dispose of the case by deciding it by considering the applicability of the statute of limitations concerning a mosque which, it was admitted by all, was built in 1528.

Given the ‘hijacking’ of the case, it was no surprise that the record proved unmanageable. The supreme court itself noted, “The record consists of 38,147 pages of which 12,814 pages are in Hindi, 18,607 pages are in English, 501 pages are in Urdu, 97 pages are in Gurumukhi, 21 pages are in Sanskrit, 86 pages are in other language scripts, 14 pages contain images and 1,729 pages are in combination of more than one language script viz Hindi, English, Urdu, Sanskrit and Gurumukhi. The record also includes 4,278 blank pages, though numbered yet not relevant for the purpose of translation” – a process that would take two months.

On Feb 26, 2019, the supreme court suggested mediation during this interregnum. The Muslim side agreed; the Hindu side did not. On March 8, the apex court made a formal order: “We are of the view that the mediation proceedings should be conducted with utmost confidentiality so as to ensure its success which can only be safeguarded by directing that the proceedings of mediation and the views expressed therein by any of the parties including the learned mediators shall be kept confidential and shall not be revealed to any other person. While the mediation proceedings are being carried out, there ought not to be any reporting of the said proceedings either in the print or in the electronic media.”

The mediators it appointed were Fakkir Mohamed Ibrahim Kalifulla, former judge, supreme court of India; Sriram Panchu, senior advocate; and Sri Sri Ravi Shankar, who has publicly expressed his opinion loud and clear in support of the Hindu side. The mediatory panel is to hold the third round of talks with the petitioners on June 17. It has been given a two-month extension of time (until Aug 15) by the supreme court.

The panel has reported progress to the supreme court. But the development comes even as the Ram Janmabhoomi Nyas, which has been spearheading the Ram Mandir movement across the country, convened a meeting in Ayodhya to formulate a future strategy for construction of Ram Mandir in Ayodhya. “We were against any form of mediation in the Ayodhya case. Thereafter, we were also against any extension to the mediation panel,” said Mahant Kamal Nayan Das, head of the Nyas. “We want the court to decide the Ayodhya dispute on the basis of facts”.

The supreme court has initiated an exercise that was doomed to failure at the very outset. There is a very simple course before the apex court. It can — and ought to — declare that the case is impossible to resolve by a judicial process, especially since one of the parties, the Hindu side, declared in 1989 that it will not abide by a judicial verdict.

The writer is an author and a lawyer based in Mumbai.

Published in Dawn, June 15th, 2019