Day 17 Arguments: 6 March 2019

Today, the Supreme Court reserved verdict on whether the case should be resolved through a Court monitored mediation, under Section 89 of the Code of Civil Procedure (CPC). While the counsels for the Sunni Wakf Board and the Nirmohi Akhara backed the suggestion, the counsels for Ram Lalla, Mahant Suresh Das and the State of Uttar Pradesh opposed it.

 

Section 89 of the CPC provides for mediation as a form of alternate dispute resolution, which does not involve the direct intervention of the Court.

 

In the previous hearing, the Bench expressed that mediation had yet to be explored as a means of resolving the land dispute. It proposed a Court appointed and Court monitored mediation process. Further, it said that the mediation could take place in the interim period, while the counsels are reviewing translations of submitted documents. Many submissions were originally in Hindi, Urdu and other languages and had to be translated. In the previous hearing, the Bench granted the parties 8 weeks to submit any objections they had to the translations.

 

The case is an appeal against the 2010 Allahabad High Court judgment that divided the land at Ayodhya between 3 parties: the Sunni Waqf Board, Nirmohi Akhara and Ram Lalla.

 

The Bench comprises CJI Gogoi and Justices Bobde, Chandrachud, Bhushan and Nazeer.

 

Hearing

The Bench assembled at 11.10 AM.

 

First, an objection to mediation was raised. It was submitted that the matter cannot be referred to mediation as it is "a sentimental matter" pertaining to Ram Janmabhoomi (the birthplace of Ram). Section 89, Order 1 Rule 4 was referred to. It was submitted that the case is a "representative suit" -- i.e. even if the parties agree to a compromise, it might not bind the larger public on whose behalf the suits have been filed.

 

Justices Bobde and Ashok Bhushan rebutted the above submission. They stated that the Court is considering mediation precisely because it is not merely a land dispute, but also involves the sentiments and faith of the two communities. They emphasised that they were concious of the impact of the dispute on the body politic of the country.

 

Rajeev Dhawan (for Sunni Waqf Board)

Next, Counsel Rajeev Dhawan representing the Sunni Waqf Board relied on two supreme court decisions to submit that only arbitration and not mediation needs the consent of parties. 

 

Further, Rajeev Dhawan, quoting a Supreme Court judgment, submitted that the Court is not required to formulate the terms of the settlement, but only the nature of the dispute. He also referred to the CPC mediation rules.

 

Justice Bobde expanded on Dhawan's submissions, stating that a single individual need not appoint the mediators. Rather, he said, that a panel could appoint the mediators. Rajeev Dhawan agreed.

 

Justice Bobde then emphasised that confidentiality would be essential, if the Court ordered mediation. He said that it would be essential that the mediation were not reported in the media. Rajeev Dhawan requested the Bench to go a step further. He referred to The Contempt of Courts Act and said that the mediation process should be entirely confidential.

 

Chief Justice Gogoi commented on the note sumbitted to the Bench by Rajeev Dhawan. Chief Justice Gogoi commented on the decision of Afcon Infrastructure v. Cherian Verkay Construction  cited by Rajeev Dhawan, which says that representative suits are considered more suitable for mediation. Recall that the present case is a representative suit. Dhawan responded by stating that suitablity and unsuitability are not exhaustive.

 

Justice Chandrachud raised a practical concern. He asked, how can the result of the mediation be binding on millions of people?

 

Counsel Rajeev Dhawan took the Court through Section 89, at which time the Bench began to discuss something amongst themselves.

 

Justice Chandrachud referred to Section 89(2)(d), which says that  "for mediation, the court shall effect a compromise between the parties and shall follow such procedure as may be prescribed."  Justice Chandrachud stated that in the present case the following difficulty would arise: as it is a representative suit, will the compromise reached be binding on all interested sections

 

Rajeev Dhawan concluded by stating that mediation was ultimately an idea advanced by the Court. He said that the issue of whether it is legally possible will have to be decided by the Court. Finally, he said that after analysing Section 89, he was satisfied that it was plausible.

 

Unidentified Counsels (for Hindu side)

Next, counsels representing the Hindu side referred to CPC Order 1 Rule 8 and Order 23 Rule 3b. They submitted that no agreement of compromise can be entered into without the leave of the Court. Further, they submitted that the Court before granting leave has to give notice to all persons interested in the suit. They submitted that under a  representative suit, compromise binds persons, who are not necessarily party to the suit (in this case the public at large).

 

Justice Bobde enquired : "Suppose there is a compromise and it is accepted and passed by the Court. That decree will be binding and akin to a decree after a trial. For there is no difference between the two, given that the Court on satisfaction with the compromise will pass the decree and it is that decree which will be binding."

 

Some counsels for the Hindu side argued againt the feasibility of mediation by saying that in the current case, the entire society is a party.

 

Justice Bobde responded by stating that the Bench understood the issue of feasibility. He said that the question was whether or not it is legal or whether there is any lacunae in the law.

 

Barun Kumar Sinha (for Akhil Bharat Hindu Mahasabha)

The Counsel  stressed the need for public notice, under Order 1 Rule 8 of CPC.

 

Justice Ashok Bhushan stated that the procedure under Order 1 Rule 8 does not apply given that the case is at the appellate stage. He said that it should have relied upon at the High Court stage and that it need not be repeated at the appellate stage.

 

The counsel said that he is open to mediation.

 

Subramaniam Swamy (for a Hindu party)

Next, Mr. Subramaniam Swamy presented arguments. He submitted that mediation is bound by certain parameters, which in this case would be overstepped. First, he submitted that the maximum the parties can claim is compensation, given that the land belongs to the government (referring to the Ayodhya Act, 1993). Second, he submitted that the Narasimha Rao government had committed to giving the land to the Hindus, if a temple was found on the site.

 

CS Vaidyanathan (for Lord Ram)

Next, CS Vaidyanathan on behalf of Lord Ram presented arguments. He stated because it has been recorded that Ayodhya is the Ram Janmabhoomi (birthplace), this aspect is non-negotiable in a mediation. He submitted however, that an alternative location for a mosque could be discussed. He suggested crowd funding as option for financing the construction of a mosque.

 

Justice Bobde rebutted CS Vaidyanathan's claim that no party could dispute that the land belongs to Ram. He stated that this point could be argued in mediation.

 

Ranjit Kumar (for Mahant Suresh Das)

Next, Counsel Ranjit Kumar read the definition of a decree under Section 2(2) of CPC. He submitted that mediation could not be an option. He submitted that in a representative suit, compromise cannot turn into a decree without  notice to all interested sections. Therefore, mediation automatically would not be binding on citizens at large.

 

ASG Tushar Mehta (State of Uttar Pradesh)

Finally, ASG Tushar Mehta presented submissions on behalf of the State of UP. He submitted that mediation is not an advisable path.

 

Rajeev Dhawn objected to him presenting arguments on the grounds that the State of UP cannot take a stand on the matter as it has claimed itself to be a disinterested party before the Allahabad High Court. In addition, Mr. Tushar Mehta being the Solicitor General of India  is  supposed to have a neutral stance as Centre is a statutory receiver of the Ayodhya land. 

 

The Bench reserved verdict on whether it should refer the matter to mediation.

(Court reporting by Disha Chaudhry and Jai Brunner)