Ayodhya: CJI advice wrong, ill-conceived

The advice of the Chief Justice of India J S Khehar to the parties to the Ram Janmabhoomi-Babri Masjid dispute to find an out-of-court settlement is wrong, ill-conceived and unnecessary. The Chief Justice even offered to moderate the mediation among the parties. The court’s reasoning was that the dispute involved matters of faith and sentiment and so the parties may “sit together and arrive at a consensual decision.” This amounted to abdicating the court’s responsibility to settle the dispute before it. The court has a title dispute before it. It has to take a decision on it on the basis of evidence, legal documents, and historical and other facts, if they are relevant. Courts should not be concerned with sentiments or the consequen-ces of their decisions. They should settle disputes on the basis of the Constitution and the law. Many attempts have been made in the past to find a negotiated settlement for the dispute. All of them have failed. It is most unlikely that one more attempt will be successful. In fact, the Allahabad High Court, whose 2010 decision has been stayed by the Supreme court, acted more like a mediator than as a court when it partitioned the disputed land among three parties. When a land title is contested, the solution is not to divide it among the claimants but to decide who is the right claimant. All parties rejected what may be called a judicial mediation and that is why the issue is before the Supreme Court now. The court’s suggestion to go in for mediation may also be construed as a comment on the case. It can give strength to the idea that there can be no legal solution to the dispute or that the court is unwilling to find one. That can hurt the rule of law and the system of justice. The Supreme Court is competent and empowered to take a legal decision in the matter and all parties are liable to accept it. It also has the power to enforce its decision.

Mediation is possible only when all the parties agree to it. In the dispute, some Hindu groups are agreeable to mediation while the Muslim side is not. Mediation cannot be forced on a party. Also, the present environment in the country is not conducive to negotiation and mediation because the BJP, which is an interested party, is dominant. Justice Khehar should have considered this before making a suggestion which may even be misunderstood. The dispute may have many dimensions but the court should not stray from its duty of adjudicating the matter — as per the law of the land.

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