It appointed a panel of three mediators—headed by former Supreme Court judge FM Ibrahim Kalifulla and comprising Art of Living founder Sri Sri Ravi Shankar and senior advocate and mediation expert Sriram Panchu.
Far from ‘resolving’ the issue, attempts at mediation might, in fact, have the opposite effect.
Lack of transparent processes
Generally, court-appointed mediators are picked based on suggestions from the parties themselves. In this case, both the Hindu and Muslim litigants submitted their recommendations in a sealed envelope to the court.
While reading the order, the Supreme Court said that the three mediators were picked “after considering all the names given by the parties.” However, in the previous hearings, many names were discussed and the court itself had some suggestions.
The lack of transparency in the court’s directions naming the mediators without specifying which party suggested them or if they were simply chosen by the court is troubling.
Sri Sri Ravi Shankar as a mediator
The Supreme Court’s decision to include godman Ravi Shankar, founder of ‘Art of Living’ (AOL), is especially problematic since the spiritual guru has not displayed much respect for judicial processes until now.
In March last year, Ravi Shankar told India Today that Muslims should “give up” their claims on Ayodhya. He also added that any judicial decision on the issue against the claims of the Hindu groups could lead to a “Syria Middle-East type of situation” in the country.
Mediators are expected to maintain neutrality and only encourage parties to arrive at an amicable solution. Given Ravi Shankar’s involvement in the issue earlier to foster an ‘out-of-court settlement’ for the Hindus, he cannot be expected to maintain neutrality.
Ravi Shankar’s AOL is yet to pay up a fine of Rs 5 crore that the National Green Tribunal imposed on the organisation for damaging a 1,000-acre area by holding a massive event on the Yamuna floodplains.
In January 2017, AOL deposited Rs 25 lakh of the total fine and had said in an affidavit that the rest will be paid within three weeks. However, Ravi Shankar made contradictory statements in the media that he would not pay the fine.
In December 2017, Chennai-based Vyakti Vikas Kendra, an AOL-affiliated organisation, challenged the Tribunal’s decree. The last hearing in the case was on 2 February 2018 and despite orders to list the case within ten weeks, a hearing is yet to take place.
While the court has barred any reporting on the mediation proceedings itself, the timing of the exercise is fodder for the Lok Sabha election campaign.
Since the court recognises that the Ayodhya issue is “not only about property, but it is about sentiment and faith,” there was no reason for the court to delay the process and start mediation after the polls have concluded.
The court’s idea that the information can somehow be contained is naive since judicial gag orders in the 21st century are virtually pointless. If someone violates the gag order, the court can initiate contempt proceedings but this is unlikely to have any impact. For context, the contempt proceedings against the Uttar Pradesh government and then chief minister Kalyan Singh for violating the court’s orders in 1992 are still pending.
If a politician, including Prime Minister Narendra Modi, makes a statement on the ongoing mediation process in an election rally, there is little that can be done to stop the dissemination of that information. If not the media, political parties will ensure that the message is heard loud and clear through social media.
Significantly, the gag order is only against the media and not against the mediators themselves. While justice Kalifulla and advocate Panchu can be expected to adhere to professional legal standards and not discuss the issue in public, Ravi Shankar’s is another story. The godman has been vocal about the issue and the court’s order can do little to stop him from fanning communal passions.
How does the mediation process work?
While the present attempt at mediation is not a novel idea and such exercises have taken place in the past, this is the first time that mediation is court-mandated.
The Hindu petitioners, including those representing the deity Ram Lalla Virajman, and the Uttar Pradesh government have opposed mediation. Given that a Bharatiya Janata Party-led Uttar Pradesh government had no qualms violating directions of the Supreme Court in the Ayodhya issue in 1992, its support to the current mediation exercise will be critical in maintaining law and order in the country.
The court has also said that the mediation has to be conducted with “utmost confidentiality,” and should be concluded in eight weeks. It is trite to point out that eight weeks is an extremely unrealistic timeline for a 100-year-old litigation.
Significantly, if the mediation fails, which is not uncommon even for relatively petty land disputes, the Supreme Court does not have a plan in place for the potential fallout. A judicial pronouncement will be inevitable in that situation, but it will still have to deal with the burden of its first intervention failing.