Pressure Tactics in Mediation No Substitute for Legal Process
In a representative suit, no one party has the right to reach a settlement and impose it on the others. As a principle, I do not go public on a case I have argued until the final decision. I do not want to break that rule over the media controversy about my tearing a map which I argued should not be referred to because it was not part of the record which was subject to cross-examination. Once my tearing act ‘went viral’ without reference to the fact that the Chief Justice of India had permitted me to do so, I requested him to clarify that I indeed had his consent. The CJI confirmed that he had said that I could tear the paper. And added that his response could also go viral. That should end this controversy.

Of course, I have had many curses and life-threatening messages in the aftermath of the news. I have taken the curses and threats as compliments and the mention of Lord Ram that, ironically, some of them came wrapped in, as blessings from him.

Background to mediation controversy
I would like to write about the “successful” mediation which was strategically leaked to coincide with the last day of court hearings. But before that, let us recall the background.

Several attempts had been made to settle the Ayodhya case by mediation before and after the destruction of the Babri masjid, including when the case was before the Lucknow bench of the Allahabad high court.

These attempts failed largely because the Hindutva camp was adamant that “mandir wahin banayenge” (‘the temple will be built on that site’). Of course, the Hindu plaintiffs were not able to show that a temple was built on that site or that it was ‘Ram’s birthplace’, and were unable to offer any explanation other than a skewed collective belief reinforced by the Advani-Joshi yatras in this behalf.

A ‘Nyas’, or trust, was created in 1985 consisting of the RSS, VHP, various sants, politicians and retired judges, and this body filed a suit in 1989. Soon, Ayodhya became jam-packed with huge amounts of money and muscle. Many temples were created which amassed wealth and several goondas appeared who spread violence there. In 1993, Lal Das, the mahant of a major Ram temple in Ayodhya who was a staunch advocate of communal amity and an opponent of the Ramjanmabhoomi movement, was assassinated.

Is there any room for mediation?
Mediation is an admirable way to end any dispute provided it settles issues with the support of all parties and does not keep the embers of the controversy burning. The Supreme Court took a wise initiative to enable one more attempt at an out-of-court settlement on February 26, 2019. At that stage, the Muslim parties agreed to further mediation. The Hindu parties too (with the exception of the Nirmohi Akhara, which had a late change of heart) agreed to mediation. Needless to say, the Nyas and Nirmohi Akhara are daggers drawn against each other in court and elsewhere.

The mediation team appointed by the Supreme Court on March 8, 2019 consisted of former Supreme Court judge Justice F.M.I. Kalifulla (as chairman), the Art of Living founder Sri Sri Ravi Shankar and senior advocate Sriram Panchu. After the mediation committee held a preliminary meeting on March 10, objections were raised to the inclusion of Sri Sri Ravi Shankar since he had already taken a view that the site should go to the Hindus. Sadly, Ravi Shankar did not recuse himself, despite the fact that mediation cannot be conducted with a biased mediator.

During the mediation committee’s deliberations, we gather, the Hindu parties remained adamant on their stand whilst the Muslims (primarily the Jamiat Ulema-i-Hind, an appellant before the Supreme Court, and others) made some proposals. We do not know the full details except that which has been disclosed in the media.

As a lawyer, I made clear that I would not attend the hearings as this was a negotiation between the parties. Instead of hearing only the parties to the civil suit, the committee heard all and sundry, including an MP whose intervention in the suit was rejected by the court and whose view was that over 500 mosques (with names) were built on temples, implying a call to action.

Anyway, on May 7, 2019, Justice Kalifulla wrote to the Supreme Court asking for an extension, which the court granted till August 15. But well before the revised deadline, on July 11, the Supreme Court asked him to inform it of the progress made. This request was repeated on July 18, 2019, which resulted in a response from the committee on August 2, that mediation proceedings had failed and that there was no final outcome. Effectively, this meant the term of the mediation committee had come to an end and it was non-est, though no formal order was passed to that effect.

However, the mediation committee revived itself in a communication to the court, which on September 18 passed an order

“The hearing of the appeals, which is at a very advanced stage, will continue without interruption. If, in the meantime, the parties desire to settle the matter(s), including by the earlier constituted mediation panel, they may do so and place the settlement before the court, if reached.

We also make it clear that the terms and the process of settlement, including mediation, if resorted to, will abide by our earlier order dated March 8, 2019, with regard to confidentiality” (emphasis added).”

The words speak of an “earlier constituted mediation panel” and that the parties had an option to settle between themselves or resort to the earlier mediation panel.

From information made public, it appears that a request for settlement was made by Zufar Faruqui, chairman of the UP Sunni Waqf Board. We were informally told that Faruqui was under pressure from the Adityanath-led government in Uttar Pradesh because an FIR was pending against him. In order to obviate any further challenges to his authority to mediate or settle, Faruqui claimed that an earlier resolution of the Board had given him full powers to do anything connected with the case. But Faruqui went one stage further and asked Shakeel Ahmed Syed, one of the Board’s advocates on record (AoR) to relinquish the case and hand it over to Shahid Rizvi, another AoR of the Board. The effect of this request of change of AoR could only have meant that Zafaryab Jilani and I, who were arguing for the Board, could have been sacked from the case while arguments were going on. However, this request was not pressed (in any case it had to go through the court process) and I was later commended for my arguments in court by the chairman of the board himself.

Eleventh-hour mediation effort
Sriram Panchu, one of the members of the Supreme Court mediation committee, had been involved in several mediations including one in Nagaland. He has written a book on mediation and has expertise in this regard. He was obviously in touch with a few people who joined the discussion on mediation. Whether this was formally done during the formal proceedings of the committee or informally is not known because no minutes were sent to the larger groups of parties who had attended the mediation before August 2 and who were the main parties before the court.

On October 2, the authorised officer of the ‘Honble Supreme Court Appointed Mediation Committee’ sent a notice to some lawyers of the parties to attend mediation proceedings on October 9 with a follow up on October 10.

We do not have the details of who attended these meetings because the minutes which were hitherto sent to all were not sent this time. The mediation, in other words, was not just in camera but hidden from the parties. The Hindu side had already indicated in court that they would not join the proceedings. We were told the three prominent members who attended were Faruqui of the Sunni Waqf Board, Dharamdass of the Nirvani Akhara who had loudly abused the other main Hindu parties outside Court 1 and in court claimed that he had the right to be a shebait, Chakrapani of the Hindu Mahasabha and possibly two others. In my view, this so-called mediation was a sort of closet negotiation with parties who claimed to represent everyone but did not do so.

On October 14, 2019, the mediators sent a communication to the Supreme Court requesting that Faruqui be given protection because of a threat perception. That day, the Chief Justice of India, in the presence of UP’s additional advocate general, passed an order on behalf of the bench giving protection to Sunni Waqf Board chairman.

The next day, which was the last day of the hearings, the mediators sent another communication to the Supreme Court, the contents of which were not disclosed by the CJI. It may be assumed that this was about the so-called agreement or what had happened.

Timing and leak
Why were these confidential details leaked and what were the forces at play here? This leak was in the face of the Supreme Court’s clear order on confidentiality. Who chose the timing of the leak?

Regrettably, several media outlets – particularly Hindi TV channels – which got hold of the leaked ‘mediation’ details – did not state the obvious: that this was only a limited negotiation with a minuscule number of parties and had not actually been backed by all the Hindu and Muslim parties.

While the leak could have come from anywhere given both the number of people in the know and the political stakes involved, the mediation committee ought to have stated for the record that the negotiations had taken place only between some parties.

No basis in law
In my opinion, some first principles of mediation were ignored by the committee. When mediation takes place, there is – to borrow a well-known phrase – “bargaining in the shadow of the law”. Here, the effect of the leak was to cast a shadow on the actual legal proceedings.

Since then, of course, all the other Muslim petitioners have publicly stated that they do not agree with the so-called settlement and have distanced themselves from it totally.

Assuming this was a valid negotiation (which it was not) how can this leaked deal be converted into a legal decision? There is a legal procedure which is laid down in Order 23 of the Civil Procedure Code. The relevant rule is that “any time after the institution of a suit the plaintiff [in this case the Sunni Waqf Board] may as against all the defendants abandon his suit or abandon part of his claim with the leave of the court.”

Then, the court has to be satisfied and, on such terms as it thinks fit, withdraw the suit and part of the claim with liability against the withdrawing or adjusting the claim to pay costs (which in this case could run into crores). If this was not a withdrawal but compromise, all the parties must sign for the court to decide. But that is not all. There is a kind of suit which is a representative suit where a special procedure exists so that it is binding on all. (Order 1 rule 8). In this, the Muslim Suit 4, was a representative suit on behalf of the Muslims and representative against all the Hindus under orders of the court. Such suits cannot be compromised except if permitted by the court because the Code specifically says (in Order 23 rule 3B):

“No agreement or compromise in a representative suit shall be entered into without the leave of the court expressly recorded in the proceedings and such agreement or compromise entered without the leave of the court so recorded shall be void.”

Mark the words cannot “be entered into”, and unless leave is granted, all the parties will be heard. It follows that at its very inception, the compromise is invalid and non-est. So the media and the public are being fed with lies and illegalities.

I must make it clear I am not on the merits of the case which is to be adjudicated by the court. I am only commenting on the distorted publicity given to a ‘compromise’ which violated court orders and was itself illegal. What I have relied on is in the public domain and what I was reliably told. The media screams: “Settlement reached in dispute”. Alas, this is not the case.

I think there is a case for all the details to be brought into the public domain with the permission of the Supreme Court.

Courtesy The WIRE

Rajeev Dhavan senior advocate,