"The Contentious Issue Is Relating To Ram's Birth Place, That Is Not Negotiable": CS Vaidyanathan [Ayodhya Hearing- Courtroom Exchange]

At the outset of the Ayodhya hearing on Wednesday, it was contended that in view of Order VIII Rule 4 of the CPC, the instant dispute being in the nature of a representative suit, no part of the claim could be abandoned and no compromise could be effectively recorded unless the Court has given notice to all persons so interested. The Supreme Court five-judge bench had assembled to decide on the reference of the Ram Janmabhoomi-Babri Masjid dispute for mediation. Justice Ashok Bhushan clarified that the said provision would apply in the event of court proceedings, when the court decided the matter, and not on mediation. "If the Hindus are not ready for mediation, then nobody has the right to negotiate. It is a sentimental issue and there is no position to compromise", it was insisted. "When the court orders mediation in a matrimonial proceeding, it is with the understanding that it may result in either divorce or conciliation . The outcome is not in the mind of the court. You are just saying that we can't compromise so it may be not be necessary...", interjected Justice S. A. Bobde. "Are you saying it is a failure if it is attempted even before it is attempted? That is not fair. When the court is ordering mediation, we are not led by the assumption that someone will give up something or that someone will get something. We know the dispute is not just about property or an arch of land but about sentiments and faith. Don't think we are not conscience of it. We are aware of the impact and the gravity of the dispute and its effect on the body politic of this country. Apart from the law, we are inspired by these factors in ordering mediation- the Mind, the heart and the feelings. We don't understand how it is being rejected even without attempt...We have also read the history. You don't have to argue on the history to postpone all this. You know what you are doing...We have no control over what happened in the past, whether there was a temple or a mosque. We can only undo what exists in the present, and that is the dispute!", continued the judge. Placing reliance on the 2010 apex court decision in M/S Afcons Infra. Ltd, Senior Advocate Rajeev Dhawan (for the Sunni Waqf Board) argued that the consent of the parties is not a prerequisite for a reference to mediation- "Arbitration and conciliation require consent. But in the other forms of ADR, like Lok Adalats, it is not required. The Nature of the mediation process is not affected by an agreement of the parties or the lack of it. It is not binding, so you are still free" "It is not necessary for the court to formulate the terms of settlement. Your Lordships may merely describe the nature of the dispute in a sentence or two", he continued. "As for the selection of the mediator, there could be a well-trained mediator. Or alternatively, the parties may nominate the mediator", suggested Dr. Dhawan. Justice Bobde added that there could also be a panel as in the case of arbitration. The Senior Counsel advanced that even the original record need not be sent to the mediator, unless the process is under the supervision of a judicial officer. He advanced that the proceeding may be held in-camera, the parties being instructed to not divulge any details. Agreeing that confidentiality is a mandatory condition, Justice Bobde weighed in, "Now take a case where there is a matrimonial dispute which is sent for mediation. Or a case of partition of property between brothers. When is confidentiality breached- when someone known to the party talks. It is important that it is not printed in the media or commented on while the process is on. A gag order is not our intention or the point. But It should not be reported while the process is on because it is simple to make some comment attributing some motive to someone" Venturing that the concerned counsel ask clients to not make any revelations, Dr. Dhawan pointed out that there may even lie an action of contempt for a publication in respect of an in-camera proceeding if the court has so prohibited. At this point, Justice D. Y. Chandrachud posed a question as to how a compromise between the parties could be effectuated to dispose off the dispute- " this is a not a dispute between just the parties, but a wider dispute between communities. How will we bind them?" "You can't...you will bind when the judgment comes if mediation fails", conceded Dr. Dhawan. "One point of mediation could be- where? The Hindus on this side or the Muslims on this side? An area has to be considered", he continued. In the light of section 89(2)(d) of the CPC, which provides that where a dispute is referred for mediation, the court shall effect a compromise between the parties and shall follow such procedure as may be prescribed, Justice Chandrachud reflected, "The desirability of a negotiated outcome cannot be understated. But what if there is no compromise? That is the issue. For adjudication, it is this side or that...

"The Contentious Issue Is Relating To Ram's Birth Place, That Is Not Negotiable": CS Vaidyanathan [Ayodhya Hearing- Courtroom Exchange]

MEHAL JAIN

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