Jagdeep S. Chhokar: Past efforts at out-of-court resolution of Ayodhya dispute have been non-starters

The Indian Express - March 27, 2017

Sentiment And Justice
Past efforts at out-of-court resolution of Ayodhya dispute have been non-starters

Written by Jagdeep S. Chhokar

It is neither possible nor advisable to disregard the Supreme Court of India since Article 141 of the Constitution says, “The law declared by the Supreme Court shall be binding on all courts within the territory of India,” and also because the authority, and responsibility, for interpreting the Constitution rests with the Court. One will not be presumptuous to tell the Supreme Court what it should have done, but one hopes respectful disagreement is possible. And it is respectful disagreement that the Chief Justice of India’s offer, or suggestion, for mediation in the Ramjanmabhoomi-Babri Masjid issue — actually “case” — evokes.

Without going into the merits of the “case”, the following needs reiteration. A newspaper reports that there have been nine attempts at mediation, starting in 1859. It seems the colonial administration erected a fence to demarcate places of worship for the two groups, but the arrangement did not last long as a case was reportedly filed in 1885.

The “case” in which the CJI made his latest observations consists of a set of appeals against a judgement of the Lucknow bench of the Allahabad High Court on September 30, 2010, in which the high court ordered a three-way division of the supposedly d isputed site. These are not the only cases arising out of the Ramjanmabhoomi-Babri Masjid issue. Criminal cases are going on in Lucknow and Rae Bareli.

While the primary responsibilities of the judiciary are to interpret the law, uphold the rule of law, and to adjudicate legal disputes, mediation is most certainly a legitimate and laudable objective. This is even more so when there are “issues of sentiments and religion” as the CJI rightly observed. However, he also made an extremely significant observation: “The court should come in the picture only if you cannot settle it”.

Even if we overlook the British attempt of the 19th century, there have been attempts in the more recent past to resolve the Ramjanmabhoomi-Babri Masjid issue. Three of these have been made by the most appropriate elected official of the country: The prime minister. In 1990, Chandra Shekhar attempted a resolution after the existing mosque was partially damaged by some miscreants. The talks failed. Then P.V. Narasimha Rao made another attempt at resolution after the demolition of the mosque by setting up a commission in 1992. This commission plodded on for 17 years and submitted its report in June 2009, which has not been made public.

Then Atal Bihari Vajpayee set up an Ayodhya Cell in the PMO in 2002, and appointed a senior party official to hold talks with Hindus and Muslims. There have been no public reports on the outcome of those efforts. Despite these failures, attempts at resolution have continued. There have been five subsequent attempts, two by the courts, the Lucknow bench of the Allahabad High Court on July 26, 2010, and the Supreme Court on September 23, 2010, and three by the litigants, on February 24, 2015, on April 10, 2015, and on May 31, 2016 — all to no avail. Given this list of failed attempts, what could be the reason to hope that an out-of-court settlement of this long-running dispute is possible now?

One possible reason for the hope could be that, in the assessment of the Supreme Court, the country’s social environment has changed substantially from what it was during the period between 1990-92 and 2015-16. Given the inherent diversity in the country, there are many different views on this. One can only hope that the highest court has kept this diversity in mind while making this suggestion, and more importantly, it continues to be mindful of its primary responsibility to uphold the Constitution and the rule of law.

The other possible reason stems from an apprehension of a possible dilution of the commitment to the rule of law in preference to “issues of sentiments and religion”. It is true that law is meant to serve society and not the other way round but then, there are lawful, or constitutional, ways of making or amending laws. “Circumventing” the law is different from shying away from taking decisions. If an issue is considered to be beyond judicial adjudication in the considered judgment of the highest court, then it would be better if this is said in clear terms.

The writer is former professor, dean, and director in-charge of IIM, Ahmedabad. Views are personal