Advocate Fuzail Ahmad Ayubi is representing Haji Mohammed, one of the Muslim parties to the Babri Masjid case in Writ Petition (Civil) 4905 of 2011. He spoke to NewsClick on the constitutionality of the Supreme Court’s latest decision to send the case for mediation, what it means for the parties and general polity, and what could the future could portend.
What do you think of the Constitution Bench ruling, sending the 60-year-old dispute for mediation?
FA: The Supreme Court took this step to break the deadlock since the parties were not agreeing to a hearing before two months, because some of them had a problem with the translation of documents by the UP government. In this interregnum, the court has tried a novel measure to explore a solution to a seemingly intractable problem, and that is commendable. The bench could well have postponed the hearing for two months, but then it decided on taking an innovative step, in the interests of justice.
But it is the decision of a constitutional court, and it is bound to follow precedents. In July 2010, in the case of M/s Afcons Infra v M/s Cherian Varkey Construction, the SC decided that under Section 89 of the Code of Civil Procedure (CPC), under which the present mediation has been directed, a court is not empowered to order parties to arbitration without the consent of both parties. What was the difference made in this case?
The judgement you mentioned was about arbitration and not about mediation. Though both come under the same provision of the CPC, it is interesting to note that the court did not take recourse to Article 142 (the plenary power of the Supreme Court to do complete justice) which would have invited criticism. Instead, it has taken into consideration the views of some of the parties from both sides. Moreover, I would draw a subtle but significant distinction here. Both sides are acting only in a representative capacity (representing Ram Lalla or the other side), hence this drawing of differences is perfectly valid. Just refer to Order I Rule VIII of the CPC, which expressly permits any person on whose behalf a representative suit is instituted to apply to the Court to be brought on the record. The words of this rule are not limited, as they are by Order 1 Rule 10 by the purpose being expressed as that of adjudication on the questions arising in the suit. You will see how all this fall into place within the boundaries of the law.
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There is a ban on media reporting on the proceedings, but no ban on political parties to comment about it. Even as late as Sunday, the RSS said only a Ram temple would be built at the site. Don’t you think this is counterproductive?
The SC has left it open for the mediation panel to frame rules. We cannot comment, except wait for the panel’s preliminary orders. Some serious sentiments are involved here, and it would be unjust to press for a gag order covering all areas.
What about the choice of Faizabad as the venue? Couldn’t the SC have found a more neutral place?
Faizabad is of symbolic importance, and it is required to assuage the parties, both Hindu and Muslim. We are conscious of how this would affect the body politics, we are conscious of the enormity of the reality, and shall conduct ourselves accordingly. I also expect the other side to respect this view. It would be speculative to arrive at the conclusion that the mediation panel would decide based on the location. But and I must say this, all depends on what reaction we receive from the locals. If they decide to raise a pandemonium, then maybe the things and situation will change.
What should be the framing of the mediation? Only as a property dispute, or would it be held hostage to how the Allahabad High Court decided (based on sentiments of the majority)? Would it be property or reconciliation (which would inevitably require a compromise)? Pratap Bhanu Mehta opines that the very framing as a mediation is an acceptance of defeat. What do you think?
Both the panel and the SC are aware of the other and associated aspects of this matter. It would be myopic to see this as only a property dispute, and at the same time, we are waiting to see what the other side has to say. That will be seen only on March 13, but as per the SC’s order, we cannot disclose anything to the media nor can they report on it.
What about the choice of mediators? Sri Sri Ravi Shankar, for example?
We are aware of his past comments on the issue (as reported widely in the media) and would be expressing our grave reservations about having him on the panel. We want an untainted outcome.
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