Media can’t cover Ayodhya mediation, but SC put no bar on BJP from using it for votes

The Ayodhya mediation order will not solve anything, except give BJP more opportunity to play on sentiments to gain votes.

File photo of Supreme Court | Manisha Mondal | ThePrint

If Prime Minister Narendra Modi returns to power in about two months’ time, he should send a thank you note to the Supreme Court of India.

By ordering mediation by a three-member panel in the vexed Ram Mandir-Babri Masjid land dispute, even as several of the litigant-parties vehemently opposed it, the Supreme Court just handed a carte blanche to the BJP and its affiliates to rouse the sentiments of the Hindu voters on the issue of the construction of Ram Mandir.

The Supreme Court order is problematic on several fronts. To begin with, some of the more influential litigants from the Hindu side – the BJP government in Uttar Pradesh being one of them – don’t feel mediation would serve any purpose.

And, mediation attempts have failed in the past.

The Supreme Court order itself notes the lack of consensus. “Notwithstanding the lack of consensus between the parties in the matter we are of the view that an attempt should be made to settle the dispute by mediation. The contention raised by some of the contesting parties that the instant dispute(s) ought not to be referred to mediation … does not strictly arise for consideration at this stage when we are considering whether dispute(s) should be referred to mediation or not,” it reads.

Then there is the question of the mediators themselves – to expect an avowed proponent of Muslims-should-give-up-their-claim-over-Ayodhya-land theory like Sri Sri Ravi Shankar to be an impartial mediator is a bit naïve. And, most significantly, who will get any order of mediation implemented in case some sides choose not to accept it? And, the seat of mediation will be Faizabad, where the disputed land is. How’s that for optics?

Let there be no doubt, anything less than a “bhavya Ram Mandir” at the disputed site would be seen as a sell-out by the RSS/BJP leadership and there’s no way they will accept that.

And, if proof was required of how things will pan out in the future, here’s a sample. The RSS, while welcoming the constitution of a mediation committee, categorically said Sunday that only a Ram temple should be constructed at the site. And, yes, the RSS isn’t going to allow a minor technicality like a court order come in the way of its public pronouncements on the issue. After all, there’s an election to be won!

For several decades now, the BJP has been luring Hindus to vote for it on the promise of a temple at Ayodhya – a reclamation of the centuries-old hurt Hindu pride when Muslim invaders razed a Hindu Temple to build the Babri mosque. To expect the BJP to now sit back and not rouse passions, especially after many Hindus have been made to believe that the Supreme Court is not resolving the matter on priority, will be naïve.

The biggest concern with the Supreme Court order is that while it has barred “any reporting of the said proceedings (mediation) either in the print or in the electronic media”, it has not ordered a similar restraint on the politicians.

Thus, while the media can’t report even factual developments in the mediation, nothing stops the BJP leaders from seeking votes by using the issue of how Hindus have been prevented from building a temple at the place of Ram’s birthplace.

If it casts aspersions on the Supreme Court in the process about its failure to do justice to the majority community, is there anybody to stop them? While their intent in trying to ensure a resolution of the vexed dispute through mediation is certainly not questionable, the five judges in the Constitution bench – Chief Justices Ranjan Gogoi and Justices S.A. Bobde, D.Y. Chandrachud, Ashok Bhushan and S. Abdul Nazeer – should have asked themselves: Will the order solve anything except give more opportunity to the BJP to play on sentiments to gain votes?

Even after burning its fingers with its misfired attempt to play the honest arbiter in the Rafale deal case, the Supreme Court doesn’t seem to have learnt its lesson. The job of the court, especially a Constitution court, is to decide matters of utmost public interest and disputes on law. Unwittingly providing an opportunity for politicians to use its orders to covet votes should be a strict no-no.

The Supreme Court’s mediation order was based on Section 89 of the Code of Civil Procedure (CPC), 1908. While the CPC is a legacy of the colonial past like most other laws, Section 89 is a newer addition to it.

It empowers a court to refer sub-judice disputes to various alternative dispute resolution mechanisms, including mediation and arbitration, to avoid time-consuming, costly litigation.

But the Ayodhya appeals are pending in the Supreme Court since 2010. It has seen nine CJIs and dozens of other judges. Hasn’t enough time been lost already?

In its July 2010 judgment in M/S Afcons Infra Ltd and another versus M/S Cherian Varkey Construction, the Supreme Court decided the issue of whether, under Section 89, a court is empowered to refer the parties to a suit to arbitration without the consent of both parties.

The bench of Justices R.V. Raveendran and J.M. Panchal held that a court exercising power under Section 89 of the Code “cannot refer a suit to arbitration unless all the parties to the suit agree for such reference”.

Even though there is a difference between mediation and arbitration, both are covered under Section 89 of the CPC and the rules will also be the same.

But, what the Supreme Court seems to have missed is that it has granted an opportunity to the Hindu groups, which had opposed mediation, to play the victim card in the upcoming elections.