Ethnic & Political Struggles in Assam, Northeast India
How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/
ABSTRACT *
This article examines the ethnic conflicts in the Indian state of Assam and the prospects for peace. The author sets out the long history of migration across the porous border with Bangladesh, the legal definition of the illegal migrant under the Citizenship Act 1955, and the National Register of Citizens, whose provisional list excluded some four million people. A second strand traces the position of the Bodo community, the Assam movement of 1979 to 1985, the first and second Bodo Accords, and the establishment of the Bodoland Territorial Council, noting that implementation of the first accord was assessed at only twenty-four percent and that armed groups reformed in consequence. The author concludes that exclusionary policies will not produce stability, and argues instead for securing basic rights and livelihoods and for inclusive political participation. The characterisations reflect the author’s own perspective; this journal’s editorial position is neutral.
KEYWORDS *
Assam, National Register of Citizens, migration, statelessness, Bodoland, Bodo Accord, Bodoland Territorial Council, ethnic conflict, citizenship, North East India, inclusion, peace accords
INTRODUCTION
The article herein is probing into the ethnic conflicts in Assam, North Eastern State of India. Assam is fronting mammoth encounters as to illegal immigration, and the government of India decided to make a National Register of Citizens (NRC) is critically examined in the backdrop of efforts to bring peace initiations in the State. Auxiliary, this article pacts with the Bodo Accord, the peace accords signed between militants and the government; and further the article is exploring opportunities for peace and rebuilding democracy in the backdrop of relentless conflicts and ethnic clashes in the State of Assam.
Introduction
Assam is a state in India with migrants from different parts of India and the world. Assam shares a porous border with Bangladesh, and migration from Bangladesh was a repetitive aspect from colonial to partition days, and it continued even after the formation of Bangladesh. Of the total population, it is estimated that a total of 1.10 lakhs immigrants are in Assam from foreign countries, and 56% are from Bangladesh, as per the 2011 Census. Besides immigrants from Bangladesh, there are immigrants from Afghanistan, Bhutan, China, Indonesia, Iran, Iraq, Kuwait, Malaysia, Maladies, Myanmar, Nepal, Pakistan, Saudi Arabia, Singapore, Turkey, UAE, Kazakhstan, Europeans, Africans, Americans, and Sri Lanka. Immigration from other Indian Sates to Assam is estimated at about 4.95 lakhs people. Immigration is overwhelmingly in rural areas of Assam, and that makes the issue more complicated. Along with immigration, Assam is facing ethnic struggles and clashes which are between the ethnic groups of Bodo and Adivasi’s, Bodo and Muslims, Karbi and Kuki, Karbi and Dimarsa e.t.c claimed more than thousands of lives, and lakhs of people got displaced.
MAIN CORPUS
Illegal Immigration
Illegal Immigrants are not refugees, according to Indian Law. Illegal immigrant as defined under the Citizenship Act, 1955, is defined as a foreigner who has entered into India: – (1) without a valid passport or other travel documents and such other documents or authority as may be prescribed by or under any law in that behalf; (2) with a valid passport or other travel documents and such other documents or authority as may be prescribed by or under the law in that behalf but remaining therein beyond the permitted period of time. Thus, an illegal migrant is excluded from the acquisition of citizenship through birth, registration, or naturalization.
National Register of Citizens (NRC) is a register maintained by the Government of India (GOI) containing the name of certain relevant information for the identification of Indian Citizens. Assam, the first state in India where updating of the NRC, being taken up, to include the names of those persons whose name appeared in the NRC of 1951. This was the outcome of the Assam movement led by the All Assam Students Union (AASU) from 1979 to 1985, and the subsequent accord they entered into with the (GOI) on August 15, 1985. Authorities under NRC are setting up detention centers and Tribunals, to decide on nationality, sparking fears of arrest, detention, or deportation in the minds of immigrants. The provisional list of Citizenship for the State of Assam excluded 4.1 million people, and most of them are Muslims who are migrated from Bangladesh.
Bodo Community & Clashes
Bodo is a group of people from four districts of Assam on the north bank of the Brahmaputra River, by the foothills of Bhutan and Arunachal Pradesh. They are an ethnic group that speaks Tibeto- Burman language; and an ethnolinguistic group, and the largest minority group in Assam. The Bodo kingdom was at its pinnacle during the reign of the Koch King Narayanan (1540- 84). In 1832 the last Bodo kingdom in Cacher fell with the seizure by the British. Thereafter the Bodos got marginalized and subsumed and submerged under the dominant cultures.
The All- Assam Students Union (AASU) led militant agitation, along with All Assam Gana Sangam Parishat ( AAGSP), with a slogan of throwing out immigrants was tensed, and was targeted more against non-Assamese people, gripped the State from 1979-1985. The agitation was more against Bangladeshi immigrants, popularly known as the Asian Movement, and came to an end with signing an accord in the year 1993, and the important chapter in the accord was to consider that all the people who immigrated to Assam after 1971 would be declared as illegal. Along with the same, the most prominent ethnic struggle was for a separate state for Bodo, named Bodoland.
However, the peace accord failed in determining the territorial demarcation for Bodo Land Autonomous Council (BAC). The Peace Accord Matrix of the University of Notre Dame ranks the Bodo Land Accord implementation after 10years as 24%, notes that the accord failed. As the result, the National Democratic Front of Bodoland (NDFB) formed as a militant group for demanding a separate Bodo Land, by erstwhile militants, who were parties to the 1993 Peace Accord. Later, in 2003, negotiation between the State government, Central government, and Bodo Land Liberation Tigers (BLT) to the signing of a peace accord popularly known as SECOND BODO ACCORD. In the reorganization, the four districts came under the Bodoland Territorial Council (BTC).
BTC is an elected body that was established in Assam according to the settlement. It came into existence immediately after the surrender of the Bodo Liberation Tiger Force (BLTF). BTC has 46 executive members with a divided area of command and control by each member of the Council. The Bodoland constitutes 35% of the marginalized tribal groups including Bodos, Rabhas, Garaos, Keots, Rajbougshi, Sarania e.t.c.
SUMMARY
BTC met with various formidable challenges, including opposition from non-bodo communities. Non-bodo communities, with a group of 18 ethnic groups, are resisting the smooth function of BTC. Further, the attempts by dominant state politics to divide bodo leadership are succeeding. The latest of these being NDFB attack carried out in 2016, known as Kokrajhar Shooting. A group of militants opened fire at a market near Kokrajhar town, and 14 people were killed and 16 were injured as a result of the attack.
Minorities, the local communities like tribe villagers, and immigrants in Assam fear that they are losing cultural identity, rights over land, and thereby culturally and politically subjugated.
CONCLUSION
4.0 Towards an inclusive resolution.
Hence, instead of a policy and announcements for excluding immigrants, working towards a resolution by securing them with basic rights by ensuring livelihood, and engaging and working for meaningful inclusive politics can bring a lasting peace for the state of Assam. An ingenious policy that shelters the basic rights of immigrants, and protecting the ethnic and culturally marginalized tribes, with a focus on re-settling, rehabilitating, and empowering through socio-economic policies and politics, with appropriate participation in civil administration along with a focus in violence prevention and conflict management, will bring eternal peace and harmony for the conflict-torn people of Assam.
POTENTIAL SOLUTION *
The two strands of this article are usually treated as separate problems, and the article’s implicit achievement is to show that they are one. The Bodo movement arose because a community felt displaced in its own homeland; the citizenship register arose because Assamese society feared demographic change; and the accords intended to settle the first created new minorities within the autonomous areas, who then feared the same thing. Every remedy applied so far has redistributed the anxiety rather than addressed it, which is why each settlement has produced its own successor conflict.
The implementation record makes the point most sharply. An accord assessed at less than a quarter fulfilled did not merely disappoint; it created the constituency for the armed group that followed, composed of the very people who had signed it. This is the recurring lesson of peace agreements everywhere and it bears restating: an unimplemented accord is more damaging than no accord, because it teaches those who took the risk of compromise that compromise does not pay. Any future agreement in Assam therefore requires what the earlier ones lacked, namely a published implementation calendar, an independent monitor accepted by all sides, and phased benefits that arrive early enough for people to see them.
Territorial autonomy needs rethinking on the same basis. Where an autonomous council governs a territory in which the community it was created for is not a majority, autonomy for one group becomes exclusion for the others, and the eighteen non Bodo communities resisting the council are responding to exactly that. Non territorial arrangements offer a way through: guaranteed representation, protection of language and culture, and control over community affairs attached to people rather than to land, so that safeguarding one community’s identity does not require subordinating another’s. Combined with reserved seats and rotating executive offices within the council itself, this converts a zero sum contest over territory into a shared administration.
On the citizenship question, the humanitarian consequences are already visible and are separable from the legal dispute. Whatever a state decides about status, people whose exclusion is under appeal require due process they can actually use, legal aid, comprehensible procedures, and reasonable evidentiary standards for populations with poor documentation, since illiteracy and flood destroyed records are common in rural Assam. Prolonged detention of people who cannot be removed anywhere serves no purpose and should be replaced by regularised residence with the right to work, which costs the state little and prevents the emergence of a permanently rightless population, which is the surest generator of the next conflict.
Finally, the local level deserves the attention it rarely receives. The violence recorded here is not primarily between armies but between neighbouring villages, over land, grazing, water and market access. District and village level mediation panels, composed in balance across the communities present and supported by traditional authorities, can settle these disputes where they arise and prevent the incidents that repeatedly reignite the wider conflict. In a state where identity has become the language in which every material dispute is expressed, resolving the material dispute quickly is often the most effective way to keep identity out of it.
* Added by the WMO Editorial Team
REFERENCES
References:-
Nisha Masih, A Crackdown in India on suspected illegal immigrants could leave millions Stateless, The Washington Post, Aug.27, 2019.
John Thomas, National Register of Citizens: Assam has its own context, misrepresenting it won’t help, The Economic Times, Sep.05, 2019.
Goalpara, Assam NRC: Workers at India’s first detention camp for illegal migrants may end up there, India Today, Sep.08, 2019.
Jaiklong Basumatary, Quest for Peace in Assam –A Study of the Bodoland Movement, KW Publishers, New Delhi, 2014.
Nani Gopal Mahante, Politics of Space and Violence in Bodoland, Economic & Political Weekly, 28(23)2013 P. 52.
Pathi Saika, Political Opportunities, Constraints, and Mobilizing Structures: An integrated Approach to Different Levels of Ethno-Political contention in Northeast India, India Review, 10(1) , 2011, P.28.
Supplementary references added by the WMO Editorial Team
The Citizenship Act, 1955 (Act No. 57 of 1955), India, and the Citizenship (Amendment) Act, 2019.
The Assam Accord, Memorandum of Settlement signed at New Delhi, 15 August 1985.
Memorandum of Settlement on Bodoland Territorial Council, 10 February 2003, and the Memorandum of Settlement on Bodo issues, 27 January 2020 (the third Bodo Accord).
The Constitution of India, Sixth Schedule, provisions on autonomous district councils in the North Eastern States.
Peace Accords Matrix, Kroc Institute for International Peace Studies, University of Notre Dame, data on the Bodo accords.
United Nations Convention relating to the Status of Stateless Persons, 1954, and the Convention on the Reduction of Statelessness, 1961.
Ethnic Conflicts & Terrorism in Sri Lanka
How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/
ABSTRACT *
This article examines peace initiatives in the Kashmir conflict between India and Pakistan, with particular attention to their significance following the revocation of Article 370 of the Indian Constitution in August 2019. After outlining the history of the territorial dispute, the ethnic and religious diversity of the region and the human cost documented in official and human rights reporting, the author considers what the constitutional change may mean for the population, including the position of displaced Kashmiri Pandits, property rights of women and the demands of Ladakh. A central section addresses the erosion of Kashmiriyat as a shared identity and its replacement by an us versus them logic on all sides. The article then surveys civil society peace initiatives, including the Peace Bus organised by the Women’s Initiative for Peace in South Asia, the South Asia Free Media Association, the Pakistan India People’s Forum for Peace and Democracy, and the Pakistan Peace Coalition, and concludes that peace initiators have a decisive role in restoring confidence and working with both governments beyond political objectives. The terminology and characterisations reflect the author’s own perspective; the editorial position of this journal is neutral as between the states and communities concerned.
KEYWORDS *
Kashmir, India, Pakistan, Article 370, Kashmiriyat, Line of Control, Kashmiri Pandits, peace initiatives, civil society, people to people dialogue, identity, Ladakh
INTRODUCTION
This Article is exploring the peace initiation by the government, people, and organizations in the conflict between India and Pakistan, over the territorial dispute of Kashmir. How the people of Kashmir are affected by this territorial conflict; and what influence the peace initiators could do in the process of bringing democracy to the people of Kashmir is examined, particularly in the backdrop of removal of Article 370 of the Indian Constitution, which granted special status to the territory of Kashmir.
Territorial disputes over the Kashmir region glinted through the three major India- Pakistan wars in 1947, 1965, and 1999. Auxiliary in the border clashes that began in late 2016 and continued into 2018 killed dozens and displaced thousands of civilians on both sides of the Line of Control. Pakistan is more concerned to segregate Kashmir from India, for democratic rights; but, India is more concerned about cross-border terrorism. From the partition of India in 1947, the conflict in Kashmir continues today, involving three nuclear powers, China, India, and Pakistan, who are in a dispute over the territory of Kashmir. The conflict is set against the backdrop of the Himalayan Mountains and valleys and involves a mélange of languages, religions, and ethnicities, notably Kashmiris, Dards, Ladakhis, Dogras, Hanjis, Gujjars, and Bakarwals. The current scenario of the territorial conflict in Kashmir is a conflict between India on one side, and the other two countries are Pakistan and China, and the Kashmiri separatists and insurgents from Pakistan occupied Kashmir. There are some groups that support the complete independence of Kashmir, while others seek Kashmir’s accession to Pakistan. The conflict in Kashmir has strong Islamic elements among the insurgents, with many of the “ultras” identifying with “jihadist” movements and supported by such identified insurgents.
MAIN CORPUS
Casualties in Kashmir Conflicts
According to the official figures released in Jammu & Kashmir assembly, in 2009, there were 3400 disappearance cases and the conflict has left more than 47000 people dead which also includes 7000 police personnel.
Human Rights Watch (2014), reports that “Behind the Kashmir conflict, abuses by the Indian Security forces and Militant groups continue”. Islamic separatists, militants are accused of violence and serious human rights violations. Summary executions, rape, and torture are reported daily. Kidnapping and killing of civil servants and suspected informants are happening, and militant groups claim responsibilities for the same. Human Rights Watch alleged that thousands of civilian Kashmiri Hindus have been killed over the past 10 years by Islamic military organizations or Muslim mobs. In the struggle for Kashmir, Burhan Wani, a poster boy of militancy, was killed by security forces in July 2016, the government failed to control the protests that broke out. The ensuing violence resulted in the deaths of more than 96 people, with thousands being injured and the Kashmir remained paralyzed for months.
Article 370 and Peace initiatives in Kashmir
In August 2019, the Government of India introduced the Jammu & Kashmir reorganization Bill 2019 in the Rajya Sabha and moved a resolution to scrap Article 370 from the constitution of India and bifurcate the State of Jammu & Kashmir into the Union Territories called as Jammu & Kashmir and Ladakh. However, the removal of Article 370 from the Indian Constitution by the Government of India is to bring peace or it is only a legal integration of the territory of Kashmir to India is the moot question. On the positive side, if the decision helps in resettling the uprooted Kashmiri Pandits, ethnic minorities in Kashmir, back home, it will be a big win. Most of these Pandits want to go back from the existing disorder of living in abject conditions in refugee camps in Jammu and elsewhere. Ending the discrimination against women deprived of property rights after marrying outside the valley is also a welcome step, from the reorganization activity by the government. The decision to divide the state has been welcomed by Ladakh. They have been demanding UT status for a while.
Historically, Kashmiri Muslims have preferred greater autonomy and sovereignty for the region have even proposed. Juxtaposed to it, 55000 families, mostly Hindus, had not been granted citizenship despite settling down in the state after partition, and were unable to own land or apply to government jobs. Hence, a minority of the non-Muslims who live in the region would like to see the state fully integrated into India
Global Peace Messenger Ms. Malala urged the people and government in this context as “The people of Kashmir have lived in conflict since I was a child since my mother and father were children since my grandparents were young. For seven decades the children of Kashmir have grown up amidst violence”.
Us versus Them
“Us versus them”. The young generation of Kashmiris who grew up in an era of violence is largely ignorant of the true meaning of Kashmiriyat, having been raised instead in the binary ideology of ‘us versus them’. Secondly, a dominant and vocal section of the Pandits after migration, came to be identified with ultra–right-wing organizations that similarly de-emphasized the Kashmiriyat component of their identity. For their part, the Kashmiri Muslims stressed more on their ‘Islamic ‘ identity rather than on their ” Kashmiri” identity; they saw themselves as part of a global Islamic Community.
Peace Initiatives
PEACE BUS – Peace Bus organized by the Women’s Initiative for peace in South Asia (WIPSA). It involved Indian activists traveling from New Delhi to Lahore in March 2000 and subsequently Pakistani activists traveling from Lahore to New Delhi in May 2000. The ‘Peace Bus’ activists were able to challenge the adversely pretentious identities and perceptions of the ‘enemy’; and provided a rare occasion for free dialogue, relationship building, and deliberations on problems that pandemic to the bilateral relationship between two countries.
SAFMA (South Asia Free Media Association) was formulated to promote interactions amongst journalists in South Asia, especially between journalists from India & Pakistan. SAFMA efforts resulted in the ‘Pakistan – India Parliamentarians, Journalists, and Experts Conference in Islamabad in August 2003’. Also, stimulated people–to–people interactions between citizens via their Mumbai- Karachi- Mumbai exchange, the Punjab-Punjab exchange; and historical initiative to bring Indian and Pakistani journalists together in Kashmir.
PIPFPD (Pakistan- India People’s Forum for Peace & Democracy), works for de-escalation of violence and killings between two countries. Frequently urges for ceasefire agreements initiate for dialogue between governments, including the people’s organizations and civil society of Kashmir.
PPC (The Pakistan Peace Coalition), is a civil society initiative for peace launched in September 1998, following the nuclear tests carried out by India & Pakistan. The PPC comprises numerous pro-peace organizations, groups, and individuals from various parts of Pakistan. They share the common goal against nuclear arms and work for peace in South Asia. PPC works with regional movements and organizations on broader themes of reduction in defense expenditure to promote human development in the two countries.
SUMMARY *
The article’s central observation is that the Kashmir conflict is not only territorial but has become a conflict of identities. Kashmiriyat, the shared regional culture that once bound the communities of the valley across religious lines, has eroded on every side: among a generation raised in violence, among displaced Pandits whose political representation has hardened, and among Kashmiri Muslims for whom religious identity has displaced regional identity. Against this background the author places the constitutional change of August 2019, whose consequences for the population remain open, and the record of civil society peace initiatives, which have repeatedly opened channels between the two societies when official relations were frozen.
CONCLUSION
The Peace initiators’ role is decisive at this critical juncture to reassure and reinforce the true meaning of Kashmiriat, and the government of India to work for Kashmiris to bring the democratic rights to people of Kashmir, and to ensure them that the Kashmiriyat ethnicity and culture is not in threat because of the termination of Article 370 of the Indian Constitution. Promoting and developing people consensus and confidence in the State to see significant improvement in the lives of ordinary Kashmiri can stop recent and anger, and the role of peace initiators’ and messengers to work with the governments of India and Pakistan beyond political goals can bring peace, happiness, and prosperity to the people in the territory of Kashmir.
POTENTIAL SOLUTION *
The initiatives the author catalogues share a feature that explains both their value and their limits. Every one of them, the bus journeys, the journalists’ exchanges, the civil society forums, was built between Indians and Pakistanis. Kashmiris themselves appear in these accounts mainly as the subject of the conversation rather than as parties to it. This mirrors the structure of the official process, in which two states negotiate about a territory whose inhabitants are represented by neither, and it is the single most consequential gap in the peace architecture described here.
Correcting it does not require resolving the sovereignty question, which is not resolvable in the near term and need not be attempted first. What can be attempted is a process in which Kashmiris across the Line of Control speak with each other and are heard by both governments: intra Kashmiri dialogue including Muslims of the valley, Pandits in displacement, Ladakhis, Gujjars, Dogras and communities on the Pakistani administered side, on the questions that concern them daily rather than on final status. Divided families, trade across the Line, movement, education, the fate of the disappeared and the conditions of return for those displaced are all negotiable now, and each is a matter on which agreement changes lives immediately.
The author’s emphasis on Kashmiriyat identifies where the deepest work lies, and it is worth being precise about what such work requires. A shared identity that has eroded cannot be restored by appeals to it; it is rebuilt, if at all, through practices that make it real again. Joint cultural and historical projects that treat the valley’s composite heritage as belonging to all its communities, contact between young people who have never met a member of the other community except as an image, and above all the return of the displaced under conditions they themselves consider safe and dignified, negotiated with them rather than announced for them, are the substance of that work. Return imposed as a political achievement produces enclaves; return negotiated between communities produces neighbours.
Two conditions determine whether any of this is possible. The first is a genuinely open space for civil society, since dialogue requires people who can travel, meet, publish and disagree without penalty, and no peace initiative of the kind described in this article can function under communication restrictions or the detention of interlocutors. The second is accountability for abuses, which the article records as attributed to security forces and militant groups alike. Where grievance has no lawful channel, it finds unlawful ones, and impartial investigation of allegations against all parties is therefore not an obstacle to reconciliation but its precondition.
Finally, the wider bilateral relationship should not be allowed to hold every other question hostage. Trade, water management under the Indus arrangements, cricket, cultural exchange and cooperation on disaster response have all functioned at moments when the political relationship was at its worst, and each maintains the contacts through which a future agreement will eventually have to travel. In a conflict now in its eighth decade, keeping such channels open is not a substitute for a settlement but the means by which one remains conceivable.
* Added by the WMO Editorial Team
REFERENCES
Raj Chengappa, The Road to ‘Naya Kashmir’, INDIA TODAY , (Oct 12, 2019, 11.00 AM) https://www.indiatoday.in/magazine/cover-story/story/20190909-the-road-to-naya-kashmir-1592959-2019-08-30.
Ramnik Mohan, Indo –Pak People-to-People Peace Efforts need a Close Look, COUNTER CURRENTS, ( Oct 10, 2019, 10.40 AM)https://countercurrents.org/2019/08/indo-pak-people-to-people-peace-efforts-need-a-close-look
B.M. Kutty, Pakistan- India Relations:- Non-governmental Initiative for Peace, PAKISTAN HORIZON, Vol.57, No.3, 41-53( July 2004)
Jaibeer Ahmad, Will the removal of Article 370 bringing peace? ECONOMIC TIMES, ( Oct 07, 2019, 08.40 AM)https://economictimes.indiatimes.com/news/politics-and-nation/will-the-removal-of-article-370-bring-peace/articleshow/70622110.cms
Supplementary references added by the WMO Editorial Team
United Nations Security Council Resolutions 47 (1948) and 91 (1951) on the India Pakistan question.
The Simla Agreement between India and Pakistan, 2 July 1972, and the Lahore Declaration, 21 February 1999.
The Jammu and Kashmir Reorganisation Act, 2019 (Act No. 34 of 2019), India, and the Constitutional Order of 5 August 2019.
Office of the United Nations High Commissioner for Human Rights (2018 and 2019). Reports on the situation of human rights in Kashmir, Geneva.
Human Rights Watch, reports on Jammu and Kashmir, New York.
Bose, S. (2003). Kashmir: Roots of Conflict, Paths to Peace. Harvard University Press, Cambridge.
Schofield, V. (2010). Kashmir in Conflict: India, Pakistan and the Unending War (3rd edition). I.B. Tauris, London.
Peace Initiations in the Kashmir Conflict
How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/
ABSTRACT *
This article examines peace initiatives in the Kashmir conflict between India and Pakistan, with particular attention to their significance following the revocation of Article 370 of the Indian Constitution in August 2019. After outlining the history of the territorial dispute, the ethnic and religious diversity of the region and the human cost documented in official and human rights reporting, the author considers what the constitutional change may mean for the population, including the position of displaced Kashmiri Pandits, property rights of women and the demands of Ladakh. A central section addresses the erosion of Kashmiriyat as a shared identity and its replacement by an us versus them logic on all sides. The article then surveys civil society peace initiatives, including the Peace Bus organised by the Women’s Initiative for Peace in South Asia, the South Asia Free Media Association, the Pakistan India People’s Forum for Peace and Democracy, and the Pakistan Peace Coalition, and concludes that peace initiators have a decisive role in restoring confidence and working with both governments beyond political objectives. The terminology and characterisations reflect the author’s own perspective; the editorial position of this journal is neutral as between the states and communities concerned.
KEYWORDS *
Kashmir, India, Pakistan, Article 370, Kashmiriyat, Line of Control, Kashmiri Pandits, peace initiatives, civil society, people to people dialogue, identity, Ladakh
INTRODUCTION
This Article is exploring the peace initiation by the government, people, and organizations in the conflict between India and Pakistan, over the territorial dispute of Kashmir. How the people of Kashmir are affected by this territorial conflict; and what influence the peace initiators could do in the process of bringing democracy to the people of Kashmir is examined, particularly in the backdrop of removal of Article 370 of the Indian Constitution, which granted special status to the territory of Kashmir.
Territorial disputes over the Kashmir region glinted through the three major India- Pakistan wars in 1947, 1965, and 1999. Auxiliary in the border clashes that began in late 2016 and continued into 2018 killed dozens and displaced thousands of civilians on both sides of the Line of Control. Pakistan is more concerned to segregate Kashmir from India, for democratic rights; but, India is more concerned about cross-border terrorism. From the partition of India in 1947, the conflict in Kashmir continues today, involving three nuclear powers, China, India, and Pakistan, who are in a dispute over the territory of Kashmir. The conflict is set against the backdrop of the Himalayan Mountains and valleys and involves a mélange of languages, religions, and ethnicities, notably Kashmiris, Dards, Ladakhis, Dogras, Hanjis, Gujjars, and Bakarwals. The current scenario of the territorial conflict in Kashmir is a conflict between India on one side, and the other two countries are Pakistan and China, and the Kashmiri separatists and insurgents from Pakistan occupied Kashmir. There are some groups that support the complete independence of Kashmir, while others seek Kashmir’s accession to Pakistan. The conflict in Kashmir has strong Islamic elements among the insurgents, with many of the “ultras” identifying with “jihadist” movements and supported by such identified insurgents.
MAIN CORPUS
Casualties in Kashmir Conflicts
According to the official figures released in Jammu & Kashmir assembly, in 2009, there were 3400 disappearance cases and the conflict has left more than 47000 people dead which also includes 7000 police personnel.
Human Rights Watch (2014), reports that “Behind the Kashmir conflict, abuses by the Indian Security forces and Militant groups continue”. Islamic separatists, militants are accused of violence and serious human rights violations. Summary executions, rape, and torture are reported daily. Kidnapping and killing of civil servants and suspected informants are happening, and militant groups claim responsibilities for the same. Human Rights Watch alleged that thousands of civilian Kashmiri Hindus have been killed over the past 10 years by Islamic military organizations or Muslim mobs. In the struggle for Kashmir, Burhan Wani, a poster boy of militancy, was killed by security forces in July 2016, the government failed to control the protests that broke out. The ensuing violence resulted in the deaths of more than 96 people, with thousands being injured and the Kashmir remained paralyzed for months.
Article 370 and Peace initiatives in Kashmir
In August 2019, the Government of India introduced the Jammu & Kashmir reorganization Bill 2019 in the Rajya Sabha and moved a resolution to scrap Article 370 from the constitution of India and bifurcate the State of Jammu & Kashmir into the Union Territories called as Jammu & Kashmir and Ladakh. However, the removal of Article 370 from the Indian Constitution by the Government of India is to bring peace or it is only a legal integration of the territory of Kashmir to India is the moot question. On the positive side, if the decision helps in resettling the uprooted Kashmiri Pandits, ethnic minorities in Kashmir, back home, it will be a big win. Most of these Pandits want to go back from the existing disorder of living in abject conditions in refugee camps in Jammu and elsewhere. Ending the discrimination against women deprived of property rights after marrying outside the valley is also a welcome step, from the reorganization activity by the government. The decision to divide the state has been welcomed by Ladakh. They have been demanding UT status for a while.
Historically, Kashmiri Muslims have preferred greater autonomy and sovereignty for the region have even proposed. Juxtaposed to it, 55000 families, mostly Hindus, had not been granted citizenship despite settling down in the state after partition, and were unable to own land or apply to government jobs. Hence, a minority of the non-Muslims who live in the region would like to see the state fully integrated into India
Global Peace Messenger Ms. Malala urged the people and government in this context as “The people of Kashmir have lived in conflict since I was a child since my mother and father were children since my grandparents were young. For seven decades the children of Kashmir have grown up amidst violence”.
Us versus Them
“Us versus them”. The young generation of Kashmiris who grew up in an era of violence is largely ignorant of the true meaning of Kashmiriyat, having been raised instead in the binary ideology of ‘us versus them’. Secondly, a dominant and vocal section of the Pandits after migration, came to be identified with ultra–right-wing organizations that similarly de-emphasized the Kashmiriyat component of their identity. For their part, the Kashmiri Muslims stressed more on their ‘Islamic ‘ identity rather than on their ” Kashmiri” identity; they saw themselves as part of a global Islamic Community.
Peace Initiatives
PEACE BUS – Peace Bus organized by the Women’s Initiative for peace in South Asia (WIPSA). It involved Indian activists traveling from New Delhi to Lahore in March 2000 and subsequently Pakistani activists traveling from Lahore to New Delhi in May 2000. The ‘Peace Bus’ activists were able to challenge the adversely pretentious identities and perceptions of the ‘enemy’; and provided a rare occasion for free dialogue, relationship building, and deliberations on problems that pandemic to the bilateral relationship between two countries.
SAFMA (South Asia Free Media Association) was formulated to promote interactions amongst journalists in South Asia, especially between journalists from India & Pakistan. SAFMA efforts resulted in the ‘Pakistan – India Parliamentarians, Journalists, and Experts Conference in Islamabad in August 2003’. Also, stimulated people–to–people interactions between citizens via their Mumbai- Karachi- Mumbai exchange, the Punjab-Punjab exchange; and historical initiative to bring Indian and Pakistani journalists together in Kashmir.
PIPFPD (Pakistan- India People’s Forum for Peace & Democracy), works for de-escalation of violence and killings between two countries. Frequently urges for ceasefire agreements initiate for dialogue between governments, including the people’s organizations and civil society of Kashmir.
PPC (The Pakistan Peace Coalition), is a civil society initiative for peace launched in September 1998, following the nuclear tests carried out by India & Pakistan. The PPC comprises numerous pro-peace organizations, groups, and individuals from various parts of Pakistan. They share the common goal against nuclear arms and work for peace in South Asia. PPC works with regional movements and organizations on broader themes of reduction in defense expenditure to promote human development in the two countries.
SUMMARY *
The article’s central observation is that the Kashmir conflict is not only territorial but has become a conflict of identities. Kashmiriyat, the shared regional culture that once bound the communities of the valley across religious lines, has eroded on every side: among a generation raised in violence, among displaced Pandits whose political representation has hardened, and among Kashmiri Muslims for whom religious identity has displaced regional identity. Against this background the author places the constitutional change of August 2019, whose consequences for the population remain open, and the record of civil society peace initiatives, which have repeatedly opened channels between the two societies when official relations were frozen.
CONCLUSION
The Peace initiators’ role is decisive at this critical juncture to reassure and reinforce the true meaning of Kashmiriat, and the government of India to work for Kashmiris to bring the democratic rights to people of Kashmir, and to ensure them that the Kashmiriyat ethnicity and culture is not in threat because of the termination of Article 370 of the Indian Constitution. Promoting and developing people consensus and confidence in the State to see significant improvement in the lives of ordinary Kashmiri can stop recent and anger, and the role of peace initiators’ and messengers to work with the governments of India and Pakistan beyond political goals can bring peace, happiness, and prosperity to the people in the territory of Kashmir.
POTENTIAL SOLUTION *
The initiatives the author catalogues share a feature that explains both their value and their limits. Every one of them, the bus journeys, the journalists’ exchanges, the civil society forums, was built between Indians and Pakistanis. Kashmiris themselves appear in these accounts mainly as the subject of the conversation rather than as parties to it. This mirrors the structure of the official process, in which two states negotiate about a territory whose inhabitants are represented by neither, and it is the single most consequential gap in the peace architecture described here.
Correcting it does not require resolving the sovereignty question, which is not resolvable in the near term and need not be attempted first. What can be attempted is a process in which Kashmiris across the Line of Control speak with each other and are heard by both governments: intra Kashmiri dialogue including Muslims of the valley, Pandits in displacement, Ladakhis, Gujjars, Dogras and communities on the Pakistani administered side, on the questions that concern them daily rather than on final status. Divided families, trade across the Line, movement, education, the fate of the disappeared and the conditions of return for those displaced are all negotiable now, and each is a matter on which agreement changes lives immediately.
The author’s emphasis on Kashmiriyat identifies where the deepest work lies, and it is worth being precise about what such work requires. A shared identity that has eroded cannot be restored by appeals to it; it is rebuilt, if at all, through practices that make it real again. Joint cultural and historical projects that treat the valley’s composite heritage as belonging to all its communities, contact between young people who have never met a member of the other community except as an image, and above all the return of the displaced under conditions they themselves consider safe and dignified, negotiated with them rather than announced for them, are the substance of that work. Return imposed as a political achievement produces enclaves; return negotiated between communities produces neighbours.
Two conditions determine whether any of this is possible. The first is a genuinely open space for civil society, since dialogue requires people who can travel, meet, publish and disagree without penalty, and no peace initiative of the kind described in this article can function under communication restrictions or the detention of interlocutors. The second is accountability for abuses, which the article records as attributed to security forces and militant groups alike. Where grievance has no lawful channel, it finds unlawful ones, and impartial investigation of allegations against all parties is therefore not an obstacle to reconciliation but its precondition.
Finally, the wider bilateral relationship should not be allowed to hold every other question hostage. Trade, water management under the Indus arrangements, cricket, cultural exchange and cooperation on disaster response have all functioned at moments when the political relationship was at its worst, and each maintains the contacts through which a future agreement will eventually have to travel. In a conflict now in its eighth decade, keeping such channels open is not a substitute for a settlement but the means by which one remains conceivable.
* Added by the WMO Editorial Team
REFERENCES
References:
Raj Chengappa, The Road to ‘Naya Kashmir’, INDIA TODAY , (Oct 12, 2019, 11.00 AM) https://www.indiatoday.in/magazine/cover-story/story/20190909-the-road-to-naya-kashmir-1592959-2019-08-30.
Ramnik Mohan, Indo –Pak People-to-People Peace Efforts need a Close Look, COUNTER CURRENTS, ( Oct 10, 2019, 10.40 AM)https://countercurrents.org/2019/08/indo-pak-people-to-people-peace-efforts-need-a-close-look
B.M. Kutty, Pakistan- India Relations:- Non-governmental Initiative for Peace, PAKISTAN HORIZON, Vol.57, No.3, 41-53( July 2004)
Jaibeer Ahmad, Will the removal of Article 370 bringing peace? ECONOMIC TIMES, ( Oct 07, 2019, 08.40 AM)https://economictimes.indiatimes.com/news/politics-and-nation/will-the-removal-of-article-370-bring-peace/articleshow/70622110.cms
Supplementary references added by the WMO Editorial Team
United Nations Security Council Resolutions 47 (1948) and 91 (1951) on the India Pakistan question.
The Simla Agreement between India and Pakistan, 2 July 1972, and the Lahore Declaration, 21 February 1999.
The Jammu and Kashmir Reorganisation Act, 2019 (Act No. 34 of 2019), India, and the Constitutional Order of 5 August 2019.
Office of the United Nations High Commissioner for Human Rights (2018 and 2019). Reports on the situation of human rights in Kashmir, Geneva.
Human Rights Watch, reports on Jammu and Kashmir, New York.
Bose, S. (2003). Kashmir: Roots of Conflict, Paths to Peace. Harvard University Press, Cambridge.
Schofield, V. (2010). Kashmir in Conflict: India, Pakistan and the Unending War (3rd edition). I.B. Tauris, London.
Ayodha land dispute mediation amidst mosque and temple bungled
How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/
ABSTRACT *
This article examines why the court-monitored mediation ordered by the Supreme Court of India in the Ayodhya title dispute failed, and draws on comparable faith based conflicts elsewhere to identify the causes. After outlining the historical background and the composition of the mediation panel, the author sets out the court’s reasoning that the dispute concerned religious sentiment rather than land, and describes the process adopted: evaluative mediation conducted through shuttle diplomacy, involving twenty five litigants, several hundred religious figures and civil society representatives across five cities. Introducing the concept of religicised conflict, in which religious sentiment perpetuates rather than resolves a dispute, the author argues that the court monitored format amounted to a withdrawal from the interfaith dialogue model that such conflicts require, and that its decisive weaknesses were the appointment of mediators by the court rather than by the parties and the absence of a creative minority within each community capable of representing it. The terminology and historical characterisations reflect the author’s own perspective; the editorial position of this journal is neutral as between the communities concerned.
KEYWORDS *
Ayodhya, court monitored mediation, faith based mediation, interfaith dialogue, religicised conflict, shuttle diplomacy, evaluative mediation, transformative mediation, creative minority, Supreme Court of India, communal relations
INTRODUCTION
This article is examining the failure of the Supreme Court (Apex Court) Monitored Mediation in resolving the dispute on a title over land at Ayodhya, UP State, India, between Hindus and Muslims. Also, the article is taking depictions of conflicts of similar nature, elsewhere, based on ‘faith’, ‘religion’, ‘belief’, and trying to understand the factors that might have caused a failure, including the repercussions on faith-related disputes going on elsewhere in the World.
MAIN CORPUS
Historical Background:
Zahir–ud-din Muhammed Baber, the founder of Mughal Empire in India, with the leadership of his General Mir Baqi, is believed to have built a Mosque, named Babri Masjid, in 1528 AD, at the birthplace of Hindu deity – Ram, at Ayodhya District, in UP State, India. It was alleged that the Mosque was constructed after destroying a temple at the site. In the recent past, on December 6th, 1992, in a political rally by Hindu political parties, and by the temple activists, violence and riot took place, and the Mosque was destroyed, and several communal clashes and deaths followed by it. Subsequently, a land title suit was filed, and the Allahabad High Court, using pieces of evidence by the Archeological Survey of India, confirmed the remaining of a temple, at the site, and given a 2:1 verdict to the Hindus and Muslims, favoring Hindus. The Supreme Court of India stayed the Allahabad High Court Order of splitting the site into three parts and said that the status quo will remain. Subsequently, the matter was referred to the Constitution Bench of Five Judges. The Five Judge Constitution Bench of the Supreme Court of India ordered COURT MONITORED MEDIATION, and the Mediation Panel is under Retired Supreme Court Justice F M Kallifulla, as Chairman, Sri Sri Ravishankar, is an Indian Hindu Spiritual leader and founder of Art of Living Foundation, who is known for spreading Meditation for Peace; and Mr. Sriram Panchu, is a Senior Advocate and Mediator and the Director on the Board of International Mediation Institute.
Why Court referred the Dispute to Mediation?
The Supreme Court of India, the Apex Court, finding no resolve for a dispute from 1528, decided to refer the matter to Mediation under a “Court Monitored Mediation”. As Justice S.A Bobde made it clear during the proceedings that “the dispute is not about the 1500 sq. ft. of disputed land, but about religious sentiments. We know its impact on public sentiment, on the body politic. We are looking at minds, hearts, and healing if possible”.
Role and Expectations from the Mediation Committee
The Court Monitored Mediation, in the above backdrop, was expected to bring the faith-based mediation principles into the forefront, which can be well balanced, by the expert mediation team appointed by the Supreme Court, through the spiritual and religious dimension, to open a window of peace and communal harmony, through prayers, forgiveness and reconciliation is the ultimate expected objective of the Supreme Court.
Negotiation Method, Stages & Demands
The method of evaluative mediation, by meeting the parties separately, and talking to attorneys by practicing the “Shuttle Diplomacy” in the Court Monitored Mediation was opted in comparison to the Facilitative and Transformative methods, in a conflict related to the much ‘religicised’ dispute.
A total of 25 litigants and their counsels were invited by the Mediation Committee. The panel met litigants and hundreds of religious personalities from both communities, including 300 Imams, and members of civil society at different towns and cities. Proceedings were held mainly in Ayodhya, Lucknow, Delhi, Kolkata, and Chennai. The majority opinion formed in the Mediation was, Muslim litigators were ready to settle the dispute by giving up the claim on the Mosque site and allow construction of the Ram Temple. Earlier, a prominent Muslim cleric and member of AIMPLB, Mr. Maulana Salman Husaini Nadwi, stated that: -“The only way of resolving the problem was to shift the ‘Masjid’ ( the Mosque), from the disputed site with assurance and undertaking for the protection of all ( other) Mosques in the country. The peace treaty signed by the Prophet (Muhammed), known as Hudaybiyya peace treaty, is a shining example of how to avoid clashes. Mosques have been relocated and shifted in the past”. The All India Muslim Personal Board (AIMPLB), reiterated its uncompromising stand on Babri Masjid and opted for litigation as a resolution; and expelled Mr. Maulana Salman Husaini Nadwi from AIMP.
Role of Religion in the Dispute – depictions from conflicts elsewhere
Conflict connected with religion and religious sentiments are termed as ‘religicised’, and here the religious sentiments are used to perpetuate rather than resolving disputes. The injection of religion into the conflict in a land title dispute, based on religious reasoning, and faith, often find no resolutions.
Court Monitored Mediation is a complete withdrawal from the interfaith dialogue, which is ideal for the dispute in a faith-related matter, and particularly when the dispute is ‘religicised’. Usually, in inter-faith dialogue, religious leaders representing groups in conflict, develop proper and effective communications between hostile parties, removing the climate of fear, and developing common ethical principles. Using religious symbolism in the course of Mediation can open a window to the deeper emotional and spiritual realities of those involved in the conflict and in the lives of the Negotiators themselves. In All African Conference on Churches, during the Sudanese Civil War, in 1972, the mediators offered prayers at critical junctures and invoked instructive Christian and Islamic texts, as a matter of interfaith dialog.
Here the dispute, though local in nature, is having a nature of national characteristic, like many proposals for resolving the disputes from Muslims were mainly on four grounds. Firstly, to enforce the law on Places of Worship (Special Provision) Act, 1991, which prohibits conversion of any place of worship and provides for maintenance of the religious character of any place of worship as it existed on August 15, 1947. Secondly, Community to be allowed to pray at the 600 places of worship that are under the custody of the Archaeological Survey of India (ASI). Thirdly, to allow the restoration and renovation of 37 Mosques in Ayodhya , and Finally, for reservation for Muslims in education, but the same did not have the mandate of Mediation terms and reference.
SUMMARY
Only a creative minority representing the group, can facilitate, lead and represent the negotiations in dispute of similar nature. This is being stated by World Conference on Religion & Peace representative Mr. William Vendly, “conflict fomented by a religious community can best be contested by a creative minority from the same faith community”; and the same did find factual in this case of Ayodhya dispute Mediation too. There was no creative minority group for Hindus, mainly because the State government UP, opposed the initiation of Mediation; and for Muslims, the creative minority failed to make it.
CONCLUSION
The Court-monitored Mediation, a complete retreat from the inter-faith dispute resolution model, was represented by Mediators of court choice. The court-monitored mediation model was ineffective, as the Mediators were not selected by the parties, and there was no creative minority to represent them in Mediation. The style of Court-monitored Mediation, with a focus on “Shuttle Diplomacy” failed in the process, as such; and failed to find an amicable resolution.
As an alternative, a mediation process, with mindful mediation, with transformative mediation principles with an application of faith mediation principles could have enhanced communications between parties; and for a spiritual resolution, in the Ayodhya dispute remain squandered.
POTENTIAL SOLUTION *
The diagnosis offered here is the most valuable part of the article, because it identifies a defect that recurs wherever courts order mediation in disputes of high public significance. Party selection of the mediator is not a procedural nicety; it is where a party’s consent to the process is actually given. A panel appointed by a court, however distinguished, is received by each community as the court’s instrument rather than its own, and the mediators then possess authority without legitimacy, which is precisely the combination that produces polite meetings and no movement.
The remedy is available within court referral rather than against it. A court can order that mediation take place while leaving the composition of the panel to the parties, from an accredited list, with the court appointing only if agreement fails. In communal disputes a further step is available: allowing each community to nominate a mediator it trusts, together with a jointly agreed neutral chair. This produces a panel that is balanced rather than neutral in the abstract, and it is generally more effective than a panel constructed on the principle of one representative per community, since the latter invites each member to be judged by their own constituency on how much they extracted.
The author’s second observation, concerning the creative minority, deserves to be treated as a design requirement rather than an incidental finding. In identity conflicts, the people capable of legitimising a compromise are those within a community who can face their own side, and they are always in a minority and always exposed. The expulsion of the cleric who proposed relocation of the mosque illustrates the cost precisely: those who move first are punished by their own institutions. A mediation process that hopes to rely on such voices must first protect them, through simultaneous rather than sequential concessions, so that no one is left standing alone, through confidentiality until an overall package exists, and through the accompanying support of respected figures who will not repudiate them afterward. Where such a constituency does not yet exist, the preparatory work is to help it form, which takes years rather than the weeks a court timetable allows.
That points to the third difficulty. Shuttle diplomacy is well suited to hard bargaining over divisible goods, and poorly suited to disputes the court itself described as concerning minds, hearts and healing. Where the object of the conflict is sacred, the encounter has to be direct at some point, because acknowledgment cannot be relayed through an intermediary. Interfaith dialogue conducted over time, joint prayer and study, shared care of sites of significance to both traditions, meetings between the bereaved of the 1992 violence, changes what the parties believe about each other in a way that no exchange of proposals can.
Finally, a practical note about scope. The article records that several proposals raised by Muslim representatives, on the protection of other places of worship, access to sites under archaeological custody, and the restoration of mosques, fell outside the mandate the court had defined. A mandate confined to the title of a single plot forecloses precisely the trades that make agreement possible, because it leaves one community with nothing to receive in exchange for what it gives. Where a dispute is symbolic, the currency of exchange must also be symbolic, and courts referring such matters would do well to define the mandate broadly enough to permit it.
* Added by the WMO Editorial Team
REFERENCES
References:
Bobby Naqvi, Mediation Panel talks over India’s Babri Masjid Fail, Gulf News( August 05, 2019) https://gulfnews.com/world/asia/india/mediation-panel-talks-over-indias-babri-masjid-fail-1.1564659246475
Bobby Naqvi, Indian Muslims ready to give up claims on Babri Mosque, Gulf News( August 07, 2019) https://gulfnews.com/world/asia/india/indian-muslims-ready-to-give-up-claims-on-babri-mosque-1.1563180589456
Bobby Naqvi, Final Secret Negotiations in India’s Babri –Temple dispute from July 29, Gulf News( August 15, 2019) https://gulfnews.com/world/asia/india/final-secret-negotiations-in-indias-babri-temple-dispute-from-july-29-1.1564290725046
Jacob Bercovitch & S. Ayse Kadayifei , Religion and Mediation:- Role of Faith-Based Actors in International Conflict Resolution, International Negotiation 14,(2009) 175-204.
Supplementary references added by the WMO Editorial Team
M. Siddiq (D) Thr. Lrs. v. Mahant Suresh Das and Others, Supreme Court of India, judgment of 9 November 2019 (the final adjudication of the dispute following the failure of the mediation).
Supreme Court of India, order of 8 March 2019 constituting the mediation panel.
The Places of Worship (Special Provisions) Act, 1991, India.
Gopin, M. (2000). Between Eden and Armageddon: The Future of World Religions, Violence, and Peacemaking. Oxford University Press, New York.
Appleby, R. S. (2000). The Ambivalence of the Sacred: Religion, Violence, and Reconciliation. Rowman and Littlefield, Lanham.
Smock, D. R. (Ed.) (2002). Interfaith Dialogue and Peacebuilding. United States Institute of Peace Press, Washington, D.C.
Redaktionelle Einschätzung: Der Artikel ist eindeutig von einem Menschen verfasst, fachlich fundiert und stellt eine sinnvolle Ergänzung zum früheren Ayodhya Beitrag desselben oder eines verwandten Autors dar, den Du bereits bearbeitet hast. Empfehlung: behalten. Zwei Hinweise: Erstens ist die Darstellung der Vorgeschichte streckenweise einseitig, das habe ich mit dem Neutralitätssatz im Abstract abgefangen. Zweitens endet der Text vor dem Urteil des Supreme Court vom November 2019, weshalb ich diese Entscheidung in den ergänzten Quellen aufgeführt habe, damit Leser die Fortsetzung finden. Falls Du die beiden Ayodhya Artikel gemeinsam veröffentlichst, wäre eine wechselseitige Verlinkung sinnvoll, da der eine die Hoffnungen vor der Mediation und der andere ihre Auswertung danach beschreibt.
How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN:
2628-6998, https://worldmediation.org/journal/
This article is examining the failure of the Supreme Court (Apex Court) Monitored Mediation in resolving the dispute on a title over land at Ayodhya, UP State, India, between Hindus and Muslims. Also, the article is taking depictions of conflicts of similar nature, elsewhere, based on ‘faith’, ‘religion’, ‘belief’, and trying to understand the factors that might have caused a failure, including the repercussions on faith-related disputes going on elsewhere in the World.
Historical Background:
Zahir–ud-din Muhammed Baber, the founder of Mughal Empire in India, with the leadership of his General Mir Baqi, is believed to have built a Mosque, named Babri Masjid, in 1528 AD, at the birthplace of Hindu deity – Ram, at Ayodhya District, in UP State, India. It was alleged that the Mosque was constructed after destroying a temple at the site. In the recent past, on December 6th, 1992, in a political rally by Hindu political parties, and by the temple activists, violence and riot took place, and the Mosque was destroyed, and several communal clashes and deaths followed by it. Subsequently, a land title suit was filed, and the Allahabad High Court, using pieces of evidence by the Archeological Survey of India, confirmed the remaining of a temple, at the site, and given a 2:1 verdict to the Hindus and Muslims, favoring Hindus. The Supreme Court of India stayed the Allahabad High Court Order of splitting the site into three parts and said that the status quo will remain. Subsequently, the matter was referred to the Constitution Bench of Five Judges. The Five Judge Constitution Bench of the Supreme Court of India ordered COURT MONITORED MEDIATION, and the Mediation Panel is under Retired Supreme Court Justice F M Kallifulla, as Chairman, Sri Sri Ravishankar, is an Indian Hindu Spiritual leader and founder of Art of Living Foundation, who is known for spreading Meditation for Peace; and Mr. Sriram Panchu, is a Senior Advocate and Mediator and the Director on the Board of International Mediation Institute.
Why Court referred the Dispute to Mediation?
The Supreme Court of India, the Apex Court, finding no resolve for a dispute from 1528, decided to refer the matter to Mediation under a “Court Monitored Mediation”. As Justice S.A Bobde made it clear during the proceedings that “the dispute is not about the 1500 sq. ft. of disputed land, but about religious sentiments. We know its impact on public sentiment, on the body politic. We are looking at minds, hearts, and healing if possible”.
Role and Expectations from the Mediation Committee
The Court Monitored Mediation, in the above backdrop, was expected to bring the faith-based mediation principles into the forefront, which can be well balanced, by the expert mediation team appointed by the Supreme Court, through the spiritual and religious dimension, to open a window of peace and communal harmony, through prayers, forgiveness and reconciliation is the ultimate expected objective of the Supreme Court.
Negotiation Method, Stages & Demands
The method of evaluative mediation, by meeting the parties separately, and talking to attorneys by practicing the “Shuttle Diplomacy” in the Court Monitored Mediation was opted in comparison to the Facilitative and Transformative methods, in a conflict related to the much ‘religicised’ dispute.
A total of 25 litigants and their counsels were invited by the Mediation Committee. The panel met litigants and hundreds of religious personalities from both communities, including 300 Imams, and members of civil society at different towns and cities. Proceedings were held mainly in Ayodhya, Lucknow, Delhi, Kolkata, and Chennai. The majority opinion formed in the Mediation was, Muslim litigators were ready to settle the dispute by giving up the claim on the Mosque site and allow construction of the Ram Temple. Earlier, a prominent Muslim cleric and member of AIMPLB, Mr. Maulana Salman Husaini Nadwi, stated that: -“The only way of resolving the problem was to shift the ‘Masjid’ ( the Mosque), from the disputed site with assurance and undertaking for the protection of all ( other) Mosques in the country. The peace treaty signed by the Prophet (Muhammed), known as Hudaybiyya peace treaty, is a shining example of how to avoid clashes. Mosques have been relocated and shifted in the past”. The All India Muslim Personal Board (AIMPLB), reiterated its uncompromising stand on Babri Masjid and opted for litigation as a resolution; and expelled Mr. Maulana Salman Husaini Nadwi from AIMP.
Role of Religion in the Dispute – depictions from conflicts elsewhere
Conflict connected with religion and religious sentiments are termed as ‘religicised’, and here the religious sentiments are used to perpetuate rather than resolving disputes. The injection of religion into the conflict in a land title dispute, based on religious reasoning, and faith, often find no resolutions.
Court Monitored Mediation is a complete withdrawal from the interfaith dialogue, which is ideal for the dispute in a faith-related matter, and particularly when the dispute is ‘religicised’. Usually, in inter-faith dialogue, religious leaders representing groups in conflict, develop proper and effective communications between hostile parties, removing the climate of fear, and developing common ethical principles. Using religious symbolism in the course of Mediation can open a window to the deeper emotional and spiritual realities of those involved in the conflict and in the lives of the Negotiators themselves. In All African Conference on Churches, during the Sudanese Civil War, in 1972, the mediators offered prayers at critical junctures and invoked instructive Christian and Islamic texts, as a matter of interfaith dialog.
Here the dispute, though local in nature, is having a nature of national characteristic, like many proposals for resolving the disputes from Muslims were mainly on four grounds. Firstly, to enforce the law on Places of Worship (Special Provision) Act, 1991, which prohibits conversion of any place of worship and provides for maintenance of the religious character of any place of worship as it existed on August 15, 1947. Secondly, Community to be allowed to pray at the 600 places of worship that are under the custody of the Archaeological Survey of India (ASI). Thirdly, to allow the restoration and renovation of 37 Mosques in Ayodhya , and Finally, for reservation for Muslims in education, but the same did not have the mandate of Mediation terms and reference.
Only a creative minority representing the group, can facilitate, lead and represent the negotiations in dispute of similar nature. This is being stated by World Conference on Religion & Peace representative Mr. William Vendly, “conflict fomented by a religious community can best be contested by a creative minority from the same faith community”; and the same did find factual in this case of Ayodhya dispute Mediation too. There was no creative minority group for Hindus, mainly because the State government UP, opposed the initiation of Mediation; and for Muslims, the creative minority failed to make it.
Conclusion
The Court-monitored Mediation, a complete retreat from the inter-faith dispute resolution model, was represented by Mediators of court choice. The court-monitored mediation model was ineffective, as the Mediators were not selected by the parties, and there was no creative minority to represent them in Mediation. The style of Court-monitored Mediation, with a focus on “Shuttle Diplomacy” failed in the process, as such; and failed to find an amicable resolution.
As an alternative, a mediation process, with mindful mediation, with transformative mediation principles with an application of faith mediation principles could have enhanced communications between parties; and for a spiritual resolution, in the Ayodhya dispute remain squandered.
References:
- Bobby Naqvi, Mediation Panel talks over India’s Babri Masjid Fail, Gulf News( August 05, 2019) https://gulfnews.com/world/asia/india/mediation-panel-talks-over-indias-babri-masjid-fail-1.1564659246475
- Bobby Naqvi, Indian Muslims ready to give up claims on Babri Mosque, Gulf News( August 07, 2019) https://gulfnews.com/world/asia/india/indian-muslims-ready-to-give-up-claims-on-babri-mosque-1.1563180589456
- Bobby Naqvi, Final Secret Negotiations in India’s Babri –Temple dispute from July 29, Gulf News( August 15, 2019) https://gulfnews.com/world/asia/india/final-secret-negotiations-in-indias-babri-temple-dispute-from-july-29-1.1564290725046
- Jacob Bercovitch & S. Ayse Kadayifei , Religion and Mediation:- Role of Faith-Based Actors in International Conflict Resolution, International Negotiation 14,(2009) 175-204.
Mandatory mediation for motor accidental disputes in India
How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/
ABSTRACT
This article is probing into the possibilities for mandatory mediation mechanism to the disputes in Motor Accidents in India. In the Indian judiciary, especially the Motor Accidents Claims Tribunal (MACT) is branded with an image of breeding a ‘mountain of pending cases’. The use of Mediation is being explored, but not practiced with robustness, and the possibilities of Alternative Dispute resolutions (ADR) are enormous in the arena of Insurance dispute resolutions. Mediation in ADR is simple, less technical, quick, cheaper, and more responsive to the actual realities of the situation in an accident claim case. Auxiliary, this paper deals with the best practices for Mediation in motor accidental cases in the backdrop of pendency of a large number of cases, and the requirement for amending the Motor Vehicle Act, 1988, is studied.
KEYWORDS *
Motor accident claims, India, mandatory mediation, Motor Accident Claims Tribunal, Motor Vehicle Act 1988, insurance disputes, case pendency, Med Arb, co mediation, Motor Accident Mediation Authority, IRDA, access to justice
INTRODUCTION
India has the largest number of road accidents in the World. An average number of death per day is more than 300, meaning more than 10 persons die every hour. In the year 2017, there were 4, 64, 910 unfortunate road accidents, and 1, 47, 913 lives were claimed, and caused injuries to 4, 70, 975 persons. Road accidents in India are a “harsh reality”, and a large number of accidents are giving “rise to phenomenal quantum jump” in claim cases, as observed by the Supreme Court of India, in Mr. Krishna Murthy v. The New India Assurance Co. Ltd and others, this year. The pendency of Motor Accidental Cases (hereafter MAC) data is frightening. The total number of MAC in India, as of now, is 8, 66, 874, which is 13.65% of the total civil disputes pending, as per the National judicial data grid. A total of 30. 81% of the MAC are in pendency between 1 to 3 years, 11. 59% are between 3 to 5 years, and 7.5% are between 5 to 10 years, and 2% are between 10 to 30 years.
Research Objectives & Design:
In the backdrop of the immediate and emergent requirement for insurance claim dispute resolutions, given the context of huge pendency, within the mainstream and in the alternative mode, with adjudicatory and non-adjudicatory procedures, how best the Mandatory Mediation can be suitable for the insurance industry dispute resolution is being examined from the existing laws and regulations. Further, the paper is exploring the possibilities to bridge the gap in the law, by suggesting appropriate amendments to the existing legislation, by enabling the insurer and the insured to an acceptable, quick, and cheaper dispute resolution method by empowering the insured for a negotiated and mediated resolutions.
The Research Design used for this study is a descriptive method, and the tools are analytical, based on the existing legislation, circulars, case laws, and case studies.
MAIN CORPUS
Legal Framework for Insurance dispute resolutions in India:
In India, life Insurance laws are governed under the Insurance Act, 1938, and the Insurance Laws (Amendment) Act, 2015; and the Life Insurance Corporation Act, 1956. Insurance other than life is governed by the General Insurance Business Nationalization Act, 1972. The other major legislation is: – The Marine Insurance Act, 1963, The Insurance Regulatory & Development Authority of India Act, 1999(hereafter IRDA), Insurance Rules, 1939, Insurance Ombudsman Rules 2017; and the Motor Vehicle Act 1988, and the amendments thereof.
The Motor Vehicle Act, 1988:
The Motor Vehicle Act, 1988, and amendments thereof covenant with the provisions as to motor vehicle accidental claim resolutions. The claims arising out of self or other (third party) disputes are resolved under the same. A special Tribunal named Motor Accident Claims Tribunal (hereafter MACT) is created for the same. The Tribunal can formulate its own process in proceedings. The Tribunal shall follow the summary procedure for adjudication of claims filed. Claimants in the dispute are those who suffered injuries or damages in an accident, and the parties, self or third parties, can make the claim application to the concerned MACT, in the location where the claimant resides or carries business in the normal course of life. The laws that determine claim are the Law of Torts (the acts of wrongdoing) and the Fatal Accident Act, 1855.
Insurance Claims & Disputes:
Disputes between the Insured and Insurer usually arise when the insured’s claim is rejected, either in part or in full. Usually, disagreements as to the scope and ambit of the Insurance clauses, as to nature of the case, cause of action, delay in submission of a claim, insufficient documents submission, the validity of documents, quantum of dispute and amount of compensation, exclusion clauses, regulatory and legal non-compliances, and non-adherence to the terms and conditions intensify the cause to the dispute.
Rules governing the interpretation of insurance policies and terms are being crystallized through the Supreme Court decisions at various points.
Mediation in Insurance Disputes:
Insurance Mediation sanctions the parties to the claim dispute to get a perception about the resolution through a neutral third person called Mediator. The Mediator herein is ought to be an Insurance expert. The Mediation style adopted herein is either facilitative or evaluative or a mix of both, based on the Mediator’s assessment of what is the best to serve the purpose for a final resolution.
The policyholder and the Insurer’s counsel need to study the disputes in detail, as to facts, circumstances, findings, exclusions, limitations, jurisdictions, documentations e.t.c before assisting the party in Mediation.
Mediation involving multiple Insurance companies and parties is complex in nature, and the legal counsels to act more effectively herein for proper guidance. This is more relevant where the multiple defendants with indemnification and subrogation claims.
Co-Mediation & Binding Mediation:
Parties are free to use or may agree for co-mediation – to use two mediators, one from each side to represent and mediate. Also, parties have the option to choose binding mediation, and the Mediator can decide the dispute within the consented parameters for an amicable permanent resolution. Here the Mediator can look into those concessions that the parties are willing to make and can limit his or her rulings to those issues on which they are unable to agree. The other method often preferred is Med-Arb, wherein Mediation, if failed, shall be decided by the Arbitration process- either by the same Mediator as Arbitrator; or reference to a new Arbitrator to decide finally.
SUMMARY
Motor Accident Mediation Authority:
Supreme Court of India, in civil appeal in Mr. Krishna Murthy V. The New India Assurance Co. Ltd and Other, in 2019, urged the government of India to amend the Motor Vehicle Act, 1988, suitably to incorporate mandatory mediation, and recommended for making use the National Legal Service Authority (NLSA), to work on the project and to develop a module for Motor Accident Mediation Authority (MAMA). Till the formulation of MAMA, the Supreme Court directed all MACTs to compulsorily to refer motor accident cases to District Mediation Authority for an early resolution of the disputes.
CONCLUSION
An Insurance claim resolution process, ensuring the participation of regulatory bodies like IRDA, with Mediation followed by Arbitration, wherever Arbitration clauses supported, with recommended amendments, by encompassing mandatory mediation, can resolve the disputes in the domain-specific segment of motor vehicle Insurance by quicker, cheaper and efficient resolutions. The resolution methods to be fine-tuned and supported with required amendments requisitely to be institutionalized under a single umbrella, by giving options to the party, either to be mediated under the governmental structure like MAMA, as proposed by the Supreme Court of India, or through the accredited Mediation Institutes or Mediators. Thus, the domain-specific dispute resolution in Insurance, with the required amendments, with a collaborative ADR, can transform the existing antiquated MACT governed adjudicatory law and practice in India.
POTENTIAL SOLUTION *
The figures in this article make the case for reform by themselves. A family that has lost its earning member waits years for compensation while the insurer, for whom the claim is one file among thousands, has every incentive to let time pass. Delay is not a neutral defect of the system; it is an asset held by one side. Any mediation scheme in this field must therefore be designed around that asymmetry, or it will simply relocate it.
Three features would give a Motor Accident Mediation Authority its practical value. The first is early referral, since mediation offered after years of tribunal proceedings salvages only what remains of a claim, whereas referral within weeks of filing, or better still before filing at the stage when the insurer first assesses the claim, is where speed actually helps the claimant. The second is interim relief, because a claimant unable to pay for medical treatment or to replace lost income will accept almost any figure; provisional payments for treatment and immediate needs, made without prejudice while the claim is negotiated, remove the pressure that most distorts these settlements. The third is standardisation, because injury compensation is one of the few areas where published benchmarks genuinely assist: agreed schedules for common injuries, based on the multiplier method the courts already apply, allow the parties to negotiate around a shared reference point rather than around who can wait longer.
Two of the mechanisms the article describes deserve qualification in this particular context. Co mediation, understood as each side appointing its own mediator, sits uneasily with the concept of a neutral, and a mediator who is seen as representing one party is an advocate under another name. Co mediation is valuable where the two neutrals are jointly appointed and jointly accountable to both parties, and that is the form worth encouraging. Similarly, Med Arb with the same neutral raises a particular difficulty where an unrepresented accident victim faces an insurance company: material disclosed in confidence during the mediation phase passes to the person who may later determine the award. Where a binding element is desirable, the safer design uses a different arbitrator, or requires informed consent given after mediation has concluded rather than in advance.
Two further elements belong in any such scheme. Claimants need independent support, since the article rightly observes that mediators here should be insurance experts, but expertise concentrated on one side of the table is not neutrality; legal aid or trained claim assistance through the legal services authorities is what allows an injured claimant to negotiate rather than merely to accept. And any mandatory referral requires a means of ensuring genuine participation, whether through costs consequences for a party that attends without authority to settle, or through published data on settlement rates by insurer, so that mandatory mediation does not become one more procedural step on the way to the same delay.
Finally, the human dimension of these cases should shape the process itself. Behind each file is a person who was injured or a family that lost someone, and for many of them acknowledgment matters alongside compensation. A process that allows that to be said, and heard, produces settlements people accept rather than merely sign, which is ultimately the difference between clearing a docket and delivering justice.
* Added by the WMO Editorial Team
REFERENCES
Mark Plumer, New Appleman, Insurance Law Practical Guide, Vol 2, Chapter 25, 2008.
Civil Appeal No. 2476- 2477 of the Supreme Court of India, Mr. Krishnamurthy V. The New India Assurance Co. Ltd & Others, 2019(India).
The Motor Vehicle Act, 1988, No. 59, Acts of Parliament, 1988(India).
Mediation First – for debt recovery law and practice in India.
How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/
ABSTRACT
This paper ( presented at International conference on ADR at IIL, Indore) is systematically examining the Debt Recovery Tools along with the laws in India vis-à-vis the Alternative Dispute Resolution (ADR) methods, considering the legal recovery practice and methodology opted by the Banking & Finance Institutions, and accepted by the public sector banks, financial institutions and regulatory bodies. In order to prevent the death of consensus, conciliation, and mediation in debt recovery law and practice, this paper explores the possibilities of how debt recovery laws can be suitably amended and adopt the principles of mandatory mediation, with an optimistic objective of mediation first followed by arbitration, and the rest by Debt Recovery Laws, to decongest the litigation exercise, and to inspire an evolving collaborative ADR system for the domain-specific dispute resolution in the banking and finance.
KEYWORDS *
Debt recovery, India, mandatory mediation, arbitration, Med Arb, SARFAESI, Debt Recovery Tribunals, Commercial Courts Act, Insolvency and Bankruptcy Code, Lok Adalat, non performing assets, hybrid dispute resolution, Prime Finance, mortgage foreclosure mediation
INTRODUCTION
“….an ounce of mediation is worth a pound of arbitration and a ton litigation” – Joseph Grynbaum
Introduction
Bad Debt in the Indian Banking and Finance sector is a serious challenge to the Indian economy, and a happenstance to the regulatory bodies like Reserve Bank of India (hereafter RBI) and National Housing Bank (hereafter NHB) to contain the same. The Gross Non –Performing Assets in India climbed to USD 143.45 billion by the end of March 2018 from USD 115.33 billion during December end1. The RBI has offered many schemes like Structuring of Stressed Assets and Strategic Debt Restructuring for the Banking and Non-Banking Finance Companies along with the various master circulars for Banks and NBFCs.The NHB, offered its guidelines to Housing Finance Companies ( hereafter HFCs) , the Housing Finance Companies (NHB) Directions , 2010 , as the standard operating manual for controlling bad debts in India2. The other two prominent approaches preferred, in general, at the cost of the economy, for controlling bad debts are “Write-Offs” and “Loan Waivers”. While “Write-Offs” are preferred by the Banking and Financial Institution executives; political will often favors “Loan Waivers”. “Write-Off” usually benefits big defaulters in the industry, whereas “Loan Waiver” schemes are offered to agricultural farmers in large numbers.
Background: – In the above scenario, the Banking and Finance Institutions, faced with tougher challenges for recovering the bad debts and clearing the non –performing assets (hereafter NPAs), are left with the traditional tools of adjudicatory recovery methods under the Civil Law process and procedures along with the modern SARFAESI3 non-adjudicatory process. Also, with the emergence of arbitration, and the mandatory mediation under the Commercial Court Act4, is changing the gamut in legal recovery gears in India; and the scenario is with multiple tools and with additional and alternative remedies for resolutions.
Research Objectives: – In the backdrop of the immediate and emergent requirement for bad debt resolutions, given the context of multiple dispute resolutions tools, within the mainstream and in the alternative mode, with adjudicatory and non-adjudicatory procedures, how best the Mandatory Mediation can be suitable for the banking and finance dispute resolution is being examined from the existing laws and regulations. Further, the paper is exploring the possibilities to bridge the gap in the law, by suggesting appropriate amendments to the existing legislation, and suggest measures to bring a hybrid dispute resolution model, by enabling the creditor and debtor to an acceptable step-by-step dispute resolution method, which is in tune with the regulatory bodies, public finance institutions, and private institutions; and by empowering the debtors for a negotiated and mediated resolutions, which are quicker and cheaper.
Research Design: – The Research Design used for this study is a descriptive method, and the tools are analytical, based on the legislation, circulars, case laws, and case studies.
Limitations of the Study: – This study is limited to the Indian Banking and Finance Institutions which are regulated and controlled by RBI and NHB, with a comparison to the emerging global trends; and does not cover the Financial Institutions under the other regulatory bodies and statutory laws in India.
MAIN CORPUS
Legal Framework for debt recovery in India
Legal Framework in India as to Debt recovery laws and practice is in a changing scenario, with the evolution of legislations, case laws, and regulatory circulars issued from time –to –time by the RBI and NHB.
Civil Laws & Rules of Practice: – Debt Recovery Civil Suits can be filed under Order 37, Code of Civil Procedure, 1908 (hereafter CPC), based on territorial and pecuniary jurisdictional limits. Data taken from the National Judicial Data Grid5, reveals the fact that the average time taken for disposal of a civil suit is from 3 years to 10 years. Of the total civil suits, 7% of the cases are delayed from 10 to 30 years and are at different stages of appeal. The Code of Civil Procedural ( Amendment ) Act, 1999, w.e.f 01-07-2002, by virtue of sec 89, the courts are now at the option of using Alternative Dispute Resolution (hereinafter ADR) methods.
N. I Act & Practice: – Cheque bounce case u/s 138 of Negotiable Instruments Act, 1881, (hereafter N.I Act) is a major instrument for debt recovery. As per the Law Commission Report of 213, under the Chairmanship of Dr. Justice A.R. Lakshmanan, there are more than 38 lakhs of cheque bounce cases were pending before various courts (as of October 2008). The average time for disposal of cheque cases is 3 years.6 Criminal cases, which are in compoundable nature like offenses u/s 138 of NI Act can be referred to Adalath. The Honorable Supreme Court in K. N Govindan Kutty Menon V. C.D Shaji7, clarified that a case u/s 138 of NI Act can be referred to Lok Adalath. And as per sec 21 of the Legal Service Societies Act, 1987, an award passed by the Adalath based on a compromise has to be treated as a decree capable of execution by the civil court.
Arbitration & Conciliation: – The arbitral remedy under The Arbitration & Conciliation Act, 1996, (hereafter Arbitration Act) is often used by the Banks and Financial Institutions, by retaining the right to appointment of Sole Arbitrator, and with the venue of their choice, is a serious limitation to the neutrality of the process. Despite the limitations, the arbitration settlement Awards take place in debt recovery arbitrations. Further, the practice of conciliation, or mediation, is at an incipient stage. The use of Mediation cum Arbitration is yet to evolve, and the Arbitration Act is silent whether the same neutral appointed can be both a mediator and arbitrator, in a dispute, in the Indian context is the major subject to be taken up for suitable amendments, for exactitude.
Lok Adalaths: – National Legal Service Society, established under the Legal Service Society Act, 1987, offers pre-litigation conciliation settlements for debt recovery cases. Pre-litigation debt recovery cases can be referred to the Lok Adalaths for a conciliation settlement. The Conciliators cannot coerce parties for compromise or settlement. The Lok Adalath conciliated Award is final and binding on parties.
SARFAESI:-The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, (hereafter SARFAESI) is special legislation for enforcement of security interest which allows non-judicial or non- adjudicatory enforcement of security interest in addition to the judicial or adjudicatory remedies, under other statutes. The SARFAESI further regulates the securitization and reconstruction of financial assets of Banks and Financial Institutions. The pecuniary jurisdictional limit for opting SARFAESI is limited to claims of one lakh and above.
RDD Act: – The Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereafter RDD Act). RDD Act is to provide for the establishment of Debt Recovery Tribunals (hereafter DRT) for expeditious adjudication and recovery of debts due to banks and financial institutions with a pecuniary jurisdictional limit of debts amounting to twenty lakhs and above. Considering the fact that the civil courts are burdened with diverse types of cases recovery of dues to banks and financial institutions like any other litigants have to go through a process of pursuing the cases for recovery through civil courts for an unduly long period, and based on Tiwari Committee Report, RDD Act was developed, and DRT started playing a crucial role in the recovery of bad debts in India. As amended in 2018, the RDD Act provides quicker remedy for Banks and Financial Institutions to recover any debts due over and above twenty lakhs. This is a serious limitation for the recovery of debts below twenty lakhs, and the purpose of the act is defeated in small cause recovery cases.
Commercial Court Act:- The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015, ( hereafter CCA), is an Act to provide for the constitution of commercial courts, commercial appellate division in the High Court for adjudicating commercial disputes for disputes above three lakhs. The essential feature is mandatory pre-institution of mediation, with the insertion of sec 12A. The Commercial Courts, Commercial Division and Commercial Appellate Division of High Court (Amendment) Ordinance, May 3, 2018). Sec 12A (1) states that ” a suit which does not contemplate any urgent relief under this Act, shall not be instituted unless the plaintiff exhausts the remedy of pre-institution mediation and settlement in accordance with such manner and procedure as may be prescribed by rules made by the central government”.
IBC: – Insolvency and Bankruptcy Code, 2016, (hereinafter IBC), is one of the most significant laws, is one of the most significant laws, affecting how financial institutions deal with distress, liquidation, and bankruptcy. This is a consolidated law as to the debt restructuring and insolvency resolution of corporate persons, partnership firms, and individuals in a time-bound manner. If the resolution plan is not approved within the time period of 180- 270 days, the NCLT may order the liquidation of the debtor company. In Innovative Industry Ltd V. ICICI Bank & Another8, the Supreme Court upheld the findings of NCLT and recognized the objective of the Code as to providing a unified and time-bound regime on Insolvency and Bankruptcy which can ease the process of exit of the companies who are in distress.
Court Annexed Mediation:- Civil Procedure Code ( Amendment) Act, 1999, introduced sec 89 in Civil Procedure Code, 1908, for reference of cases pending in the courts to Alternative Dispute Redressal ( hereinafter ADR); and Mediation through court-annexed mechanisms got introduced in India.
Counseling, Mediation & Arbitration in Debt Recovery
Debt counseling and Mediation practice and laws vary from country to country. Debt counseling cum mediation is considered to be one of the effective elucidation for bad debt resolution. In India, under the RBI, Financial Literacy and Credit Counseling Centers (FLCCCs) are being appointed to deal with the moment. Debt counseling is a process that is used to help individual debtors to come out from debt crises through credit counseling agencies or debt counselors. The traditional method used by them is awareness creation, education, and budgeting9. Regulations on debt counseling agencies vary from country to country10.
Mediation is all about the rights and interests of parties getting resolved amicably. A successful Mediator can try to reorient the parties’ discussion from rights to interest and then proceed with an “interest-based” approach11. In the matter of Debt Mediations, the power balance in Mediation is a serious issue, and efforts to connect the parties, and rebalance power combinations in negotiations is an all-important task of the Mediator. The quintessence of Debt Mediation is mindful mediation12. It is a mediation with much broader and deeper involvement by the mediator, going beyond the routine mediation techniques and methods, and get involved to the subject, with historic and cultural background in mind; and adopting the required skill set of a counseling expert, with a healing touch.
Farm Debt Mediation: – Farm Debt Mediation is currently a statutory requirements in many countries like USA, South Africa, New Zealand, and Australia. In South Australia, New South Wales, Victoria, and most recently in Queensland is practicing Mandatory Farm Debt Mediation. Farm Debt Mediation Act, 2018(South Australia), to be administered by the South Australian Small Business Commissioner, and the act protects in law mandatory debt mediation. The objective of the act is to provide for efficient and equitable resolution of farm debt dispute resolution by requiring the banks and financial institutions to provide farmers with the opportunity to have the disputes referred to mediation before the creditors are able to take possession of property or other enforcement action under the Farm Mortgages.
Emerging Hybrid Dispute Resolutions and Debt Recovery Laws
On a closer examination of the legal recovery of bad debts and laws, the emergence of hybrid dispute resolution is imminent, and to be structured by inter–linking with alternative dispute resolution methods.
SARFAESI & ARBITRATION; – SARFAESI proceedings are in the nature of enforcement proceedings, and Arbitration proceedings is an adjudicatory process. In the event that the secured assets are insufficient to satisfy the debts, the secured creditor can proceed against other assets in execution against the debtor, after determination of the pending outstanding amount by the concerned dispute resolution mechanism. Thus SARFAESI proceedings, Arbitration proceedings can go hand in hand, as per the Supreme Court rulings in HDFC Bank Ltd v. Satpal Singh Bakshi13 and in India bulls Housing Finance Ltd v. Deccan Chronicle Holdings Ltd.14and the dispute resolution method in this context is at the choice of parties, often at the discretion of the lending banker or the financial institution.
IBC & ARBITRATION – The Appellate Tribunal (NCLAT) in Jharkhand Bijli Vitran Ltd V. IVRCL Ltd & Anr15, held that there lied no bar under IBC on adjudicating upon a counterclaim filed against the corporate debtor in an arbitration proceeding initiated by a corporate Debtor during the subsistence of Moratorium. As such, the IBC adjudication and Arbitral proceedings can go together, and in emerging conflicting scenarios, hopefully, the Supreme Court shall find a mode of resolution, which facilitates a hybrid resolution method.
MEDIATION & ARBITRATION: – Arbitration Act allows Mediation cum Arbitration (hereinafter Med-Arb), and the process is administered as separate chapters, as Part-1 deals exclusively with Arbitration , and Part 3 deals exclusively with Conciliation, and by separate neutrals, is the existing law and practice. However, Arbitral Tribunals can encourage settlements and can use conciliation, to encourage settlement. Though the Arbitrator can conciliate or mediate, he can adopt only informal methods, since the formal conciliation is as per Part-3 of the Arbitration Act, and for which, Arbitrator is not permitted, and sec 30 of the Arbitration Act, is not empowered to combine the process. However, effective use of mediation during the arbitration proceedings may improve the administration of justice16. A single process, combining both the process of mediation and arbitration to resolve disputes, especially in the banking and finance domain dispute resolutions, make the entire mechanism simple, cost-effective, and quicker17. . Knowing the facts, figures, parties, evidence, and the case in its entirety can avoid duplication of the process is the eventual advantage of Med-Arb. The Chinese model of combining Mediation with Arbitration is known for its success in settlements18. The Arbitration Law 1995 of China encourages Med-Arb. Art. 51 states that “The Arbitral Tribunal may carry out mediation prior to giving an arbitral award. The Arbitral Tribunal shall conduct mediation if both parties voluntarily seek mediation. If mediation is not successful, an arbitral award shall be made promptly”. The new CETAC Arbitration Rules, 2012, Article 45(1) of the CIETAC Rules 2012 and Article 40 of the CIETAC Rules 2005) and Beijing Arbitration Commission (BAC) Arbitration Rules 2008 recognizes the Med-Arb, as a process and as a successful instrument for dispute resolutions.
PRE-LITIGATION CONCILIATION: – Legal Service Societies Act, 1987, (Hereafter NALSA) enables a party for pre-litigation mediation u/s 18(1) of the NALSA, and is called as Lok Adalath. A Lok Adalth shall have jurisdiction to determine a dispute for mediation in respect of any case pending before a court of law; or any matter which is falling within the jurisdiction but not before any court of law. Lok Adalath is established at High Court, District Court, and Taluk Court levels in each State.
MEDIATION & COMMERCIAL DISPUTES: – Mediation is mandated under the CCA; and now all commercial suits above three lacks are mandatorily pre-mediated, and Sec 12A (1) states that “a suit which does not contemplate any urgent relief under this Act, shall not be instituted unless the plaintiff exhausts the remedy of pre-institution mediation and settlement in accordance with such manner and procedure as may be prescribed by rules made by the central government”.
MEDIATION & CPC:-The courts in India can refer the parties to Arbitration, Conciliation, Mediation, Lok Adalath, or judicial settlement in terms of sec 89 of the Code of Civil Procedural Act, 1999, w.e.f 01-07-2002, as amended. Though the Malimath Committee Report recommended making mediation mandatory for courts before adjudication, the sec 89 of CPC offers an optional path that too, when it appears to the court that there exist elements of a settlement which may be acceptable to the parties, and based on a reformulated terms by the Court for a probable settlement.
DEBT MEDIATION:-COOK COUNTY CIRCUIT MORTGAGE FORECLOSURE MEDIATION (hereinafter CMFM) MODEL19. The Circuit Court of Cook County is the largest of the circuits in Illinois as well as in the court system of the United States of America. The CMFM program was launched in April 2010, with unique features of community outreach, housing counseling, and legal aid. The CMFM program by the end of two years touched a 47% success rate. Out of 2, 754 cases that completed Mediation within two years of inception, 1304 people reached some sort of an agreement with Bank with a permanent loan modification that saved the home. This was made possible by the intervention of the Illinois Supreme Court that formed a special committee to formulate a policy to clear off 78000 Mortgage foreclosure cases that were pending at Cook County Circuit Court. The special committee formed court-annexed Mortgage mediation programs, and they are now called as CMFM.
DOMAIN SPECIFIC DISPUTE RESOLUTION:-CASE STUDY: PRIME FINANCE20 –The Dutch government supported the initiative of the Prime financial disputes resolution center, known as PRIME FINANCE,(hereinafter known as PRIME FINANCE), was established in 2012, in the city of Hague. Financial regulatory bodies from Dutch, Moscow, London, New York, Frankfurt, Paris, and Dublin are the founding member participants of PRIME FINANCE.
PRIME FINANCE is the single largest collective knowledge source for financial services product dispute resolutions, regulatory compliance solutions, and governing laws in the World.
The panel of PRIME FINANCE constitutes from diverse fields, and the panel consists of Arbitrators, Mediators, Experts and Neutrals.
The core strength of PRIME FINANCE is a panel of over 130 legal and financial experts with a collective 4000+ years of relevant experience.
SUMMARY
Recommendations
To introduce Pre-Litigation Mediation mandatory, by encompassing mindful mediation for Debt Civil Suits and Cases u/s 138 of NI Act, by sculpting effective use of Legal Service Society / Accredited Mediation Institutions & Mediators service at all territorial and pecuniary jurisdictions, with necessary amendments in law.
By enabling Mediation into the SARFAESI process, before seeking sec 14 of SARFAESI assistance from Chief Metropolitan Magistrate or District Magistrate to assist secured creditor in taking possession of the secured asset. A secured creditor, invoking police power and lawfully evict persons from home, often leads to law and order issues including serious mental distress to evicted families. In Sundaram BNP Paribas Home Finance Ltd v. the State of Kerala21, it is being discussed what power is conferred by the Parliament while exercising the physical power to dispossess borrowers in home loan default. The CMFM model of Debt Mediation, Illinois, USA, is appropriate in this context, is proposed and recommended; and a suitable amendment to SARFAESI Act, with an enabling mandatory Debt Mediation prior to sec 14 application can be facilitative through housing counseling and mediation, prior to the eviction distress, can be of advantageous to the lender and borrower.
RDD Act to be amended suitably by bringing Mandatory Mediation in the lines of Commercial Court Act.
Appropriate Amendments in the Arbitration & Conciliation Act, 1996, enabling Med-Arb, for Sole Arbitrator and Arbitral Institutions. To make the ADR process simple, unified, cost-effective, and quicker, with the objective to encourage settlements, an enabling provision is recommended in sec 30 of the Arbitration & Conciliation Act, 1996, to recognize Med-Arb by Sole Arbitrator or by Panel of Arbitrators, and by Arbitral Institutions in India.
Institutional Arbitration clauses, with Med-Arb, with a panel of 5 member Arbitrators, through representative Arbitrators from the concerned regulatory body and government, are recommended, for corporate debt resolutions in banking and finance. Such a structure can facilitate debt restructuring programs prior and together with IBC; and by effective Debt Arbitration to shunning the existing practice of bad debt “Write-Offs” and “Loan Waivers”, by facilitating and using subsidy schemes implemented by the governments from time to time.
Mandating a step-by-step process to avoid duplication and multiplicity of disputes for the same cause of action in banking and finance dispute resolution, with a domain-specific model, like PRIME FINANCE dispute resolutions, Hauge, by encompassing domain-specific experts under the proposed institutional structure.
CONCLUSION
A step-by-step dispute resolution process, by ensuring the participation of regulatory bodies like RBI and NHB, with Mediation followed by Arbitration, wherever Arbitration clauses supported; and in other cases by Commercial Court or SARFAESI or DRT or IBC or Court to be dispute resolution forum, with recommended amendments, by encompassing mindful mediation, can resolve the disputes in the domain-specific segment of banking and finance by quicker, cheaper and efficient resolutions. The resolution methods to be fine-tuned and supported with required amendments requisitely to be institutionalized under a single umbrella, by establishing an Institutional structure on the lines of PRIME FINANCE, by creating a pool of domain-specific dispute resolution experts; and the Institutional structure to safeguard that, it is accessible to the disputants, with reasonable cost, in nearby locations, through free debt counseling, and by encouraging hybrid dispute resolution formats. Thus, the domain-specific dispute resolution forum, with the required amendments, and by discontinuing “one size fits all” legal recovery policy and practice adopted by the banking and finance institutions and regulators, with a collaborative ADR along with the vanilla process, can transform the existing antiquated debt recovery law and practice in India.
POTENTIAL SOLUTION *
The reform architecture proposed here is coherent and, in its central recommendation, compelling. The insertion of mandatory mediation before enforcement under section 14 of SARFAESI addresses the sharpest point in the whole system: the moment when a family is evicted from a home by an administrative order, without any forum having asked whether a restructured loan might have served the lender better than a distressed sale. The Cook County experience the author cites, where nearly half of completed mediations produced agreement and a large share preserved the home, demonstrates that this is not a concession by lenders but a commercial improvement for them, since a performing modified loan usually recovers more than a foreclosure. Where the case for reform is this strong, the argument is best made in the lender’s own language rather than in the language of relief.
What such a reform needs to succeed is the element most often omitted. Cook County worked because mediation was paired with housing counselling and legal aid, and because the borrower arrived with an independently prepared financial position rather than an appeal for sympathy. A borrower who cannot document income and expenses cannot negotiate; a lender facing an undocumented request cannot approve one. The author’s own criticism of the FLCCC arrangement, that counselling too closely tied to lenders serves the lender’s purposes, points to the design requirement: counselling funded through a sectoral levy or legal services structure, independent of the creditor, and available before the mediation rather than during it. This is also where the article’s concept of mindful mediation becomes operational, since a debtor in acute distress needs to be able to think before being asked to decide.
On the proposal to legislate Med Arb, a caution is worth entering alongside the case in its favour. The efficiency argument is real: a single neutral who already knows the accounts, the security and the parties avoids duplication, and the Chinese practice cited shows it can work at scale. But the difficulty is equally real, and it is structural rather than cultural. A debtor who has confided in caucus that they cannot survive a particular repayment level has handed that knowledge to the person who may shortly determine their liability, and knowing this, most debtors will confide nothing, which removes precisely the candour that makes mediation valuable. Any enabling amendment should therefore require informed written consent given after the mediation phase rather than in the original loan agreement, disclosure to both sides of what the neutral learned privately before any arbitral phase begins, and an unconditional right for either party to require a different arbitrator. In lending relationships, where the standard form contract is drafted by one side, consent buried in the fine print is not consent at all.
That observation extends to the article’s accurate note that banks commonly appoint the sole arbitrator and select the venue. A reform package that makes mediation mandatory while leaving that imbalance untouched risks producing procedure without fairness. Institutional appointment from an accredited panel, with disclosure obligations and a right of challenge, is the necessary counterpart to any expansion of ADR in this sector, and it costs lenders little beyond the appearance of control.
Two further points complete the design. The pecuniary thresholds the author identifies as gaps, twenty lakhs for the Debt Recovery Tribunals, three lakhs for the Commercial Courts, leave the smallest borrowers, who are also the least able to litigate, in the forum least suited to them; mediation availability should run downward rather than upward through the thresholds. And the proposed institutional structure on the Prime Finance model deserves the emphasis the author places on accessibility. Prime Finance serves sophisticated parties in complex cross border instruments; the Indian bad debt problem is composed overwhelmingly of ordinary borrowers in small towns. An institution modelled on The Hague will serve them only if it is built with district level reach, proceedings in the languages people actually speak, and cost borne largely by the financial sector rather than by the person already unable to pay.
* Added by the WMO Editorial Team
REFERENCES
FOOTNOTES
S.Kumar, India’s Bad –Debt conundrum in the Banking Sector, (April 02, 2019, 11.00 AM), http:// indvstrus.com/ India’s-bad-debt-conundrum-in the – banking sector.
National Housing Bank, Notification No. NHB.HFC.DIR.1/CMD/2010( April 04, 2019, 08.29 AM), https:// test.nhb.org.in/ Regulation / direction .php
The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, No. 54, Acts of Parliament, 2002 (India).
The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2005, No. 4, Acts of Parliament, 2016 (India).
National Judicial Data Grid ( April 04, 2019, 10.30 AM), https://njdg.ecourts.gov.in/njdgnew/index.php
National Judicial Data Grid, supra note 5.
K. N Govindan Kutty Menon v. C.D Shaji, (2012) 2 S.C.C. 51 (India).
Innovative Industry Ltd v. ICICI Bank & another, (2018) 1 S.C.C. 407 (India).
Krusch Antony, Debt Mediation –for a debt free world, WMO Conflict Insight, world mediation.org, ISSN: 2628-6998, 7th December, 2018.
Krusch, supra, note 9.
WILLIAM L. URY ET AL, GETTING DISPUTES RESOVLED DESIGNING SYSETMS TO CUT THE COST OF CONFLICT, 3-9,( Jossey-Bas Publishers) ( 1988).
Alvin Powel, When Science Meets mindfulness, the Harvard Gazette, (April 03, 2019, 10.00AM),https://news.harvard.edu/gazette/story/2018/04/harvard-researchers-study-how-mindfulness-may-change-the-brain-in-depressed-patients/
HDFC Bank Ltd v. Satpal Singh Bakshi,(2002) 4 S.C.C. 225 (India).
India Bulls Housing Finance Ltd v. Deccan Chronicle Holdings, (2018) 2 Bom. C.R 739.
Jharkhand Bijli Vitran Ltd V. IVRCL Ltd & Anr, NCLT, CP (IB) No. 294/7/HDB/2017.
Gabrielle Kaufmann-Kohler, When Arbitrators Facilitate Settlement:-towards a transnational Standard, Arbitration International, Vol.25, No.2, 2009.
Ellen E. Deason, Combinations of Mediation and Arbitration with the same neutral:-A Framework for Judicial Review, Arbitration Law Review, Vol. 5, Art.12, 2013.
Christine Kang, Oriental Experience of Combining Arbitration with Conciliation: New Development of Cietac And Chinese Judicial Practice, Fordham International Law Journal, Vol. 40, Issue 3, Art. 8, 2017.
Mortgage Foreclosure Program- Cook County Circuit Court Resolution System Institute, (April 18, 2019, 9 AM),https://www.aboutrsi.org/court-adr-across-illinois/programs/mortgage-foreclosure-mediation-program—cook-county-circuit-court.
Dispute Resolution, Prime Finance,( April 19, 2019, 10 AM) https://primefinancedisputes.org/page/about-us.
Sundaram BNP Paribas Home Finance Ltd v. State of Kerala, (2009) A.I.R 85(Kerala).
Faith based mediation for Babri Masjid – Ram Temple dispute in India
How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/
ABSTRACT *
This article examines the decision of the five judge Constitution Bench of the Supreme Court of India to refer the Ayodhya title dispute, a conflict spanning more than sixty years and marked by violence and loss of life, to court monitored mediation, and uses the case to explore how disputes rooted in faith may best be mediated. The author sets out the historical background, from the construction of the Babri Masjid in 1528 and the contested claim that it replaced a temple, through the destruction of the mosque in December 1992 and the ensuing communal violence, to the Allahabad High Court’s three way division of the site, its suspension by the Supreme Court and the referral to the Constitution Bench. The paper introduces the mediation panel chaired by retired Justice F. M. Kalifulla, alongside the spiritual leader Sri Sri Ravi Shankar and the senior advocate and mediator Sriram Panchu, and reads its composition as combining three dimensions: the humane capacity to recognise personal and emotional elements, technical mediation expertise, and a transcendent dimension grounded in religious belief. Distinguishing pure faith based mediation, which invites divine presence into the process with the agreement of all parties, from a modern hybrid form integrating technical, humane and transcendent elements, the author argues that faith based mediators must acknowledge emotion, creed and empathy, and that religious symbolism can open a window onto the deeper realities of such conflicts. The article expresses the hope that the process will foster prayer, forgiveness and reconciliation and prepare the communities to accept the eventual outcome, whether mediated or adjudicated. Readers should note that the article’s account of the site’s history and the framing of the communities reflects the author’s own perspective; the editorial position of this journal is neutral between the communities concerned.
KEYWORDS *
Ayodhya, faith based mediation, court monitored mediation, Supreme Court of India, Babri Masjid, interreligious conflict, reconciliation, spiritual dimension, communal harmony, mediation panel, religious symbolism
INTRODUCTION
This article is examining the decision of the five-judge Constitutional bench of the Supreme Court of India to refer the much-fought litigation, over 60 years, which is highly sensitive, and witnessed several violence and deaths in India, for a “Court Monitored Mediation”, to come out with a mediated solution as to the title over the disputed land at Ayodya district, UP State, between the two dominant communities- Hindus & Muslims. Considering the historical background, court judgments and findings, and the faith involved, this article is exploring the likelihoods of how faith-related matters can be mediated best, where much of the conflict is related to pride, beliefs, sentiments, and ideology are at its crowning.
MAIN CORPUS
Historical Background
Baber, the founder of the Mughal Empire in India, with the leadership of his General Mir Baqi, is believed to build a Mosque, named Babri Masjid in 1528 AD, at the birthplace of Hindu deity –Ram, at Ayodhya District, in UP State. It was alleged that the Mosque was constructed after destroying a temple at the site. In the recent past, on December 6th 1992, in a political rally by Hindu political parties, and by the temple activists, violence and riot took place, and the Mosque was destroyed, and several communal clashes and deaths followed by it. Subsequently, a land title suit was filed, and the Allahabad High Court, using pieces of evidence by the Archeological Survey of India, confirmed the remaining of a temple, at the site, and given a 2:1 verdict to the Hindus and Muslims, favoring Hindus. The Supreme Court of India stayed the Allahabad High Court Order of splitting the site into three parts and said that the status quo will remain. Subsequently, the matter was referred to the Constitution Bench of Five Judges.
The Five Judge Constitution Bench of the Supreme Court of India ordered COURT MONITORED MEDIATION, and the Mediation Panel is under Retired Supreme Court Justice F M Kallifulla, as Chairman, Sri Sri Ravishankar, is an Indian Hindu Spiritual leader and founder of Art of Living Foundation, who is known for spreading Meditation for Peace; and Mr. Sriram Panchu, is a Senior Advocate and Mediator and the Director on the Board of International Mediation Institute.
2 What is Faith-Based Mediation?
Pure Faith-Based Mediation invites God into the Mediation process, a spiritual – divine force, and all the parties have to agree upon the same, as to the process. The expectation is faith and belief will work through Mediator, and the trust is created through God’s wisdom, guidance, and force during the Mediation process is the expectation, and parties to be respectful, courteous, and polite to each other, and try for an amicable settlement.
Modern Faith-Based Mediation, however, is a hybrid one, and adopts a complex process and integrates several dimensions like:- the technical aspects of knowledge, skills; the humane one, based on the ability to recognize personal, emotional, and relational elements in a conflict; and transcendent one, which relies on the religious belief system and pursues divine intervention for reconciliation and resolution.
3 The Expectation from the Mediation Committee for the Resolution.
Mr. F. M Kallifulla, the Chairman of the Mediation Committee, is expected to play the prominent role, the humane one, and his ability to recognize the personal, emotional, and related elements in a conflict for promoting better understanding between the parties for fostering a resolution and to balance the interest of the Muslim Community in India is expected. Mr. Sriram Panchu, an expert Mediator, is a technical person and is expected to lead the knowledge front with his skills and process. Finally, the transcendent one, represented by Sri Sri RaviSankar, who is representing the Hindu Community, is expected to play the role of a Faith-Based Mediator, and he can rely on and pursue the process with convincing the Majority community of Hindus who are strong in their dispute.
4 What role is expected from Mediators in a Faith-Based Mediation?
Mediating in a faith-based dispute is a delicate and sophisticated process that requires artistry, and the main and most desired outcome expected is to reconcile people in a transcendent way, by restoring the relationship. In comparison to conventional Mediators, Faith-Based Mediators dealing the conflict in a harmonious way. The professional Mediators or the conventional Mediators may not look into or acknowledge the feelings, needs, expectations from a spiritual point of view. In a Faith-Based Mediation, the Mediators need to acknowledge the emotion, creeds, and empathy of the parties.
Using religious symbolism in the course of Mediation can open a window to the deeper emotional and spiritual realities of the issues involved in a conflict and the same can be effectively used in the process of Negotiation.
SUMMARY *
The author reads the Ayodhya referral as a test case for a distinct model of practice. Where conventional mediation addresses interests and legal positions, a dispute in which pride, belief, sentiment and ideology are paramount requires mediators who can also engage the spiritual dimension of what the parties hold sacred. The composition of the court appointed panel is presented as embodying this integration: a former judge bringing the humane dimension, a senior mediator bringing technical process expertise, and a spiritual leader bringing the transcendent dimension, with religious symbolism serving as a means of access to the deeper realities of the conflict.
CONCLUSION
5 A Transcendent Community Resolution -Everything starts with God, and ends with God.
The Court Monitored Mediation, in the above backdrop is expected to bring the faith-based mediation principles into the forefront, which can be well balanced, by the expert mediation team appointed by the Supreme Court, through the spiritual and religious dimension, to open a window of peace and communal harmony, through prayers, forgiveness, and reconciliation is the ultimate expected objective of the Supreme Court, along with a political awakening for peace and socio- communal accords, by allowing the representatives of the communities to speak harmony, instead of hatred, and to see beyond the limits of the dispute resolution, irrespective of a Mediated Settlement or a final adjudicated verdict by the Supreme Court, for better human contact, by making the parties ready for accepting the end result, shall be the final outcome of the faith-based Mediation in critical cases like this, for a Spiritual Mediation Resolution Model.
Everything starts with God, in God, and everything returns to him.
POTENTIAL SOLUTION *
A dispute of this kind cannot be resolved by determining whose history is correct. Each community’s account is sustained by centuries of transmission, and no archaeological finding or judicial holding will persuade the side it disappoints. The realistic aim of mediation here is therefore not agreement about the past but a shared arrangement for the future that neither community experiences as the erasure of its claim.
That aim shapes what such a process must do. It has to separate the question of title, which is legal and finite, from the question of standing, which is emotional and enduring. A community may accept a site it does not receive if what it does receive is unambiguous: land of comparable dignity and accessibility, resources for construction, and above all an authoritative public acknowledgment that its presence and its losses are part of the nation’s history rather than a defeat to be quietly absorbed. Conversely, a community that gains the site can afford generosity in the terms, because a settlement received as humiliation by the other side is not a settlement but a postponement.
Composition matters as much as content. Panels assembled so that each mediator is seen to represent one community carry an inherent risk: every member becomes accountable to a constituency rather than to the process, and the outcome is read as a negotiation between advocates. The safer design keeps the panel jointly responsible to both communities, with spiritual authority present on both sides rather than only one, so that religious leaders from each tradition speak to their own followers about restraint and acceptance. This is where faith based mediation delivers what no technical process can: the leaders who can legitimise a compromise are the same leaders who could delegitimise it.
Two safeguards protect a process of this weight. The first is inclusion beyond the litigants. The parties to the suit are institutions and trusts; the people who bore the violence of 1992 and its aftermath are neighbours in ordinary towns, and unless local interreligious dialogue accompanies the national settlement, an agreement signed above will not be felt below. The second is sequencing with the court. Mediation conducted while adjudication remains available protects both communities from the fear that refusing an unfair term means losing everything, and it allows the parties to prepare, as the author rightly emphasises, for accepting whatever outcome finally comes.
Finally, whatever the disposition of the land, the process should leave behind something built rather than only something decided: a jointly governed institution at or near the site dedicated to interreligious learning and to the memory of those who died. Sacred ground disputed for generations cannot be made neutral, but it can be made shared in some measure, and a settlement that gives both communities a reason to return is more durable than one that gives only one of them a reason to celebrate.
* Added by the WMO Editorial Team
REFERENCES *
Smock, D. R. (Ed.) (2002). Interfaith Dialogue and Peacebuilding. United States Institute of Peace Press, Washington, D.C.
M. Siddiq (D) Thr. Lrs. v. Mahant Suresh Das and Others, Supreme Court of India, Civil Appeal Nos. 10866 to 10867 of 2010, judgment of 9 November 2019.
Supreme Court of India, order of 8 March 2019 constituting the mediation panel chaired by Justice F. M. I. Kalifulla, with Sri Sri Ravi Shankar and Sriram Panchu.
Allahabad High Court, Lucknow Bench, judgment of 30 September 2010 in the Ayodhya title suits.
Archaeological Survey of India (2003). Report on the excavation at the disputed site, Ayodhya, submitted to the Allahabad High Court.
Report of the Liberhan Ayodhya Commission of Inquiry (2009), Government of India, New Delhi.
The Places of Worship (Special Provisions) Act, 1991, India.
The Code of Civil Procedure, 1908, Section 89 (reference to mediation and other ADR processes), India.
The Mediation Act, 2023 (Act No. 32 of 2023), India.
Gopin, M. (2000). Between Eden and Armageddon: The Future of World Religions, Violence, and Peacemaking. Oxford University Press, New York.
Appleby, R. S. (2000). The Ambivalence of the Sacred: Religion, Violence, and Reconciliation. Rowman and Littlefield, Lanham.
Abu Nimer, M. (2003). Nonviolence and Peace Building in Islam: Theory and Practice. University Press of Florida, Gainesville.
Farm debt mediation for India
How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/
ABSTRACT *
This article argues for a shift in Indian agricultural policy from farm debt waiver schemes toward institutionalised farm debt mediation. The author situates the proposal against the scale of the farm debt crisis in an agrarian nation where some seventy percent of the population depends on agriculture, citing National Crime Records Bureau figures on farmer suicides linked to unpaid loans and the compounding pressures of climate change, policy shifts, rising input costs, monsoon failure and mental health. Debt waiver schemes are criticised as self defeating, since they raise problems of beneficiary selection, damage farmers’ repayment credibility and ultimately constrict the flow of credit to the farm sector. As an alternative model the author points to Australian practice, including the Queensland Farm Finance Strategy and Farm Debt Mediation Scheme of 2008 and the Farm Debt Mediation Act 2011 of Victoria, modelled on New South Wales legislation, under which lenders must offer third party mediation before enforcement proceedings and where reported settlement rates approach ninety five percent. The paper proposes a Farm Debt Mediation and Settlement Act for Indian states, a platform built jointly by farmer associations, the banking and finance sector and non governmental organisations, a panel of accredited mediators with rural finance expertise, and a National Foundation for Farm Debt Mediation cum Arbitration operating on a tripartite basis with government participation to enable restructuring through subsidy, extended tenure, reduced instalments and incentives for prompt repayment.
KEYWORDS *
Farm debt mediation, agricultural credit, India, debt waiver, debt restructuring, farmer suicides, Australia, Farm Debt Mediation Act, tripartite mediation, arbitration, rural finance, creditor debtor disputes
INTRODUCTION
Farm Debt Mediation enables the Farmers to mediate their disputes with creditors, and the mediation process provides the farmers an opportunity to explain what is or has wedged on their capacity to repay debts and to seek mediation facilities for an outcome that enables and empowers farmers to face the creditor for a structured negotiated deal and to avoid the risk of legal proceedings.
MAIN CORPUS
Farm Debt Crisis and suicides
India being an agrarian nation with 70% of the population depending on agriculture, farm debt crisis happen so regularly, due to climate change, policy change, input cost surge, monsoon failure, and mental health issues. Over 12000 suicides were reported due to the same every year since 2013. Of the total suicides, 10% are from the farming communities. NCRB data points out that 2474 suicides out of 3000 farmer’s suicides in 2015 are the victims of unpaid loans from local banks in India.
Farm Debt Waiver
Farm Debt Waiver schemes do benefit the farmers, but it often ends with severe issues including a selection of beneficiaries and impact on creditors. Farm Debt Waiver schemes are self-defeating, as it destroys the credibility of farmers and their repayment history. In the end, such schemes affected the flow of credit to the farming sector and demolished the credit market in the farm segment of India.
Farm Debt Mediation – A solution!
The significant argument of this article is for a policy change from Farm Debt waiver to Farm Debt Mediation. Rising farm debt in Australia enabled them to initiate Farm Debt Mediation is an indicator towards the future for farming communities in any nation. In 2008, in Queensland, various rural groups and a number of banks executed a public agreement referred to as Queensland Farm Finance Strategy and Farm Debt Mediation Scheme which are similar to the Farm Debt Mediation Act 2011 of the Victoria, modeled on New South Wales legislation. In Victoria, over 180 Mediations have taken place with 95% of those Mediations resulting in a settlement agreement between parties. The Farm Debt Mediations require the banks to initiate third-party mediation prior to the commencing and enforcement of proceedings against farmers in default of loan facilities.
New Legislation is advocated: – Farm Debt Mediation & Settlement Act
The Farmer Associations in India and the Banking and Finance Consortium, in association with NGOs, can take a lead role in the creation of a platform for Farm Debt Mediations in India. Accredited Mediators with exposure to Farm lending and Rural Finance can be empaneled with the platform, and affordable professional services can be offered at various centers is advocated. This can be facilitated by appropriate legislation by the concerned state governments, considering the geographical situation and financial profile of the farming community and the banking institutions. We can invite recommendations for the suggested: – Farm Debt Mediation & Settlement Act for the states in India.
SUMMARY *
The author’s case rests on a simple contrast. Debt waivers relieve a balance sheet once, at political discretion, while leaving the farmer’s creditworthiness damaged and the rural credit market weakened. Mediation, by contrast, addresses each individual situation on its facts, gives the farmer a protected forum in which to explain why repayment failed, and produces a restructured arrangement that both sides have agreed and can therefore sustain. The Australian experience, where lenders must offer mediation before enforcement and the large majority of cases settle, demonstrates that the approach works at scale, and the author proposes the legislative and institutional architecture needed to replicate it across Indian states.
CONCLUSION
Conclusion
Farm Debt Waiver schemes should give way to Farm Debt Restructuring by creating a National Foundation for Farm Debt Mediation cum Arbitration. The proposed Farm Debt Mediation & Settlement Act ideally defines what a Farm Debt is and shall form a National Foundation for Farm Debt Mediation cum Arbitration. The Mediation cum Arbitration envisioned is tripartite including the appropriate government representative to facilitate the process of Debt restructuring by subsidizing the Farmer debt, increasing the tenure, or by reducing the monthly installments due and incentives to prompt Farmers in the reschedule agreement reached in the process of recommendations and submissions to the Mediation cum Arbitration. This in fact can help the government machinery to do away from the traditional methods of Farm Debt Waiver schemes which are based on political considerations rather than on scientific economic principles and dispute resolution methods. The proposed process can not only help the farming communities to save money and time from the traditional litigation but also get empowered and satisfied in the self–determined and government-assisted tripartite Mediation cum Arbitration process with the creditors.
POTENTIAL SOLUTION *
The author’s proposal is sound in principle; what follows is an outline of how it could be built so that it protects the party who arrives at the table with the least power. In farm debt the imbalance is stark: an institutional lender with legal departments and repeat experience faces an individual farmer, often in acute distress, negotiating perhaps once in a lifetime. A mediation framework that ignores this simply formalises the outcome the creditor would have obtained anyway.
First, make the mediation offer a condition of enforcement, not a courtesy. The decisive element of the Australian model is procedural: a lender may not proceed to enforcement against agricultural land without a certificate confirming that mediation was genuinely offered and attempted. This costs the lender little, since enforcement remains available afterwards, but it guarantees the farmer one protected conversation before the machinery of recovery begins.
Second, equip the farmer before the session, not during it. A mediation in which one side does not understand its own figures is a negotiation in name only. Independent, publicly funded farm financial counselling, preparing a realistic cash flow and viability assessment ahead of the mediation, is what converts the farmer from a supplicant into a negotiating party. The Australian schemes pair mediation with exactly this service, and it is the component most easily omitted and most costly to omit.
Third, keep the mediation and the arbitration distinct. The proposed mediation cum arbitration institution risks a familiar difficulty: a farmer who confides weaknesses to a neutral who may later decide the matter will confide nothing. If binding determination is to be available, it should be conducted by a different person under a separate agreement, entered only after mediation has been tried and only with the consent of both parties.
Fourth, structure the government’s tripartite role transparently. Public participation is valuable precisely because a state contribution, through interest subvention, guarantee or tenure extension, can make viable a restructuring that neither party could reach alone. To avoid recreating the political discretion that discredited waivers, the terms of public support should be defined by published, uniform criteria applied to every case, not negotiated case by case.
Fifth, build in dignity and safety. Given the mental health dimension the article rightly raises, mediators in this field should be trained to recognise acute distress and should have referral pathways to counselling and crisis support, with authority to adjourn where a farmer cannot negotiate freely. And where restructuring genuinely cannot succeed, the process should be able to deliver an orderly, dignified exit with debt relief and transition assistance, because the purpose of the system is to protect farming families, not merely to preserve loans.
* Added by the WMO Editorial Team
REFERENCES *
- Farm Debt Mediation Act 1994 (New South Wales), Australia.
- Farm Debt Mediation Act 2011 (Victoria), Australia.
- Queensland Farm Finance Strategy and Farm Debt Mediation Scheme, 2008, Queensland, Australia.
- National Farm Debt Mediation Bill and the National Principles for Farm Debt Mediation, Commonwealth of Australia.
- National Crime Records Bureau (2015 and subsequent years). Accidental Deaths and Suicides in India, Ministry of Home Affairs, New Delhi.
- Reserve Bank of India. Master Directions on Relief Measures by Banks in Areas Affected by Natural Calamities, and guidelines on restructuring of agricultural advances, Mumbai.
- Government of India (2007). Report of the Expert Group on Agricultural Indebtedness (Radhakrishna Committee), Ministry of Finance, New Delhi.
- National Commission on Farmers (2006). Serving Farmers and Saving Farming (Swaminathan Committee reports), Ministry of Agriculture, New Delhi.
- The Mediation Act, 2023 (Act No. 32 of 2023), India.
- The Arbitration and Conciliation Act, 1996 (Act No. 26 of 1996), India.
- The Legal Services Authorities Act, 1987, India (Lok Adalat provisions relevant to debt settlement).
- Rural Financial Counselling Service, program documentation, Australia.
Debt Mediation – For a debt free world
How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/
ABSTRACT *
Drawing on fifteen years of practice as a mediator and arbitration counsel in banking and finance in India, the author examines debt as both a financial and a deeply human burden, describing its psychological and social consequences from stress and illness to family breakdown. The paper argues that indebted individuals are frequently misdirected into costly and slow litigation, and that the effective path leads instead from debt counseling through negotiation to mediation. The author reviews the Indian institutional landscape, including the Financial Literacy and Credit Counselling Centers established under the Reserve Bank of India, which the author assesses as too close to the lending institutions, the statutory framework of conciliation under the Arbitration and Conciliation Act 1996, and the Lok Adalat system created by the Legal Services Authorities Act 1987. As a working model, the paper presents the Farmer Lender Mediation program in the United States under the Agricultural Credit Act 1987, with its orientation session, agreement to mediate and sixty day negotiation period, citing the Minnesota experience of roughly eighty percent settlement rates. The author concludes by recommending the development of global standards and a dedicated pool of trained debt mediators.
KEYWORDS *
Debt mediation, debt counseling, credit counseling, India, Reserve Bank of India, Lok Adalat, conciliation, Farmer Lender Mediation, Agricultural Credit Act, banking and finance disputes, debt negotiation, global mediation standards
INTRODUCTION
“Home life ceases to be free and beautiful as soon as it is founded on borrowing and debt” Henrik Ibsen.
As a Mediator and an Arbitration Counsel in Finance and Banking for the last 15 years in India, I have noticed that DEBT often becomes a normal part of life that we don’t give much importance to, and the warning signals are ignored. DEBT IS A BURDEN, and it makes the individual, families, and a clan sad, angry, scared, depressed, and disappointed. Debt keeps one enslaved to a bank or a financial institution or to the state. Debt and stress are like co-joined twins. The very thought of getting a legal notice on default in payment end with shortness of breath, and causes a headache, dry mouth, shakes, rapid heartbeat, panic, anger, and frustration which leads to migraines, heart disease, hopelessness, despair, and further lead to family disturbances including marriage breaks, ruining relationships, and even ethnic-community clashes. Out-of-control debt problems often push one to bankruptcy, and which in turn impact economic independence permanently.
YOU JUST NEED TO GET OUT OF DEBT. If one is in a deep financial crisis, and overburdened with debts, what to do? Where to go? Whom to be approached? Often, in my involvement with financial defaulters, I found that all were jumbled and finally land with a lawyer, who promises to give a stay of the matter, or for a permanent resolution on the ground of technicalities in the litigation process and procedures. Believing the same, the disputants with the debt burden, spent a lot of money and waste time, and end with compounded delay in penal charges on interest and litigation costs.
MAIN CORPUS
DEBT COUNSELING or CREDIT COUNSELING is the only solution for many, and it is suggested by many regulatory bodies in many countries, including in India, by the Reserve Bank of India (RBI). As a result, there are agencies under the Financial Literacy and Credit Counselling Centers (FLCCCs) appointed through RBI that are established in India. Unfortunately, they are acting as a sponsored body of the Banks and Financial Institutions, and more of a credit counseling center inactivity. Debt Counselling is a process that is used to help individual debtors to come out from debt crisis through credit counseling agencies or debt counselors. The method used by these resolution experts will empower the debtors to negotiate in a professional way to come out from a debt crisis. The traditional method used by them is awareness creation, education, and budgeting. Regulations on debt counseling and credit counseling agencies vary from country to country.
DEBT COUNSELING to be followed by DEBT NEGOTIATION. The debt negotiators like me often propose lowering of interest rates, waiving the late payment penalties, options like step-up repayment, loan restructuring, and loan take-over assistance e.t.c. followed by debt consolidation, debt relief, and reduction schemes, and debt settlement. However, the same is completely dependent on In-House Counsels in the Indian backdrop. In –House counsels who are trained in Negotiation and Mediation skills do the much-expected resolution of disputes in the Banking and Finance domain segment is the case study of India.
DUTY OF A DEBT COUNSELOR like us is that: -ensure the evaluation of the financial position of one’s client to find better solutions to manage funds by strategically paying off debts. Empowering the debtor with Self-Help Tools, budgeting, tracking the spending patterns, identify necessary expenses, and prioritizing the expenses are the traditional tools, to ensure that he or she meet the ends. Debt settlement programmers and Lok Adalaths (people’s court/community dispute resolution clinics) in the Indian context and the use of mediation services are advised to the debtors and creditors.
DEBT MEDIATORS IN INDIA to know the law involved and proceed. Mediation in India is recognized statutorily as Conciliation, in the absence of a Mediation Act. The parliamentary law committee is working on a Mediation Act for India. The present Conciliation is covered under the Arbitration and Conciliation Act, 1996. A settlement Award by a Conciliator is binding and can be enforced in a court of law. Subsequently, the introduction of Lok Adalaths to the justice system in India, for resolutions of pending court litigation, was introduced through the Legal Services Society’s Act, 1987. As such, cases can be referred to Lok Adalath with the consent of disputants, or even by one of the party. If the court is satisfied, the matter shall be referred Lok Adalath. The settlement in Lok Adalath shall be guided by the principles of justice and equality. Permanent Lok Adalath ( PLA) in India, provides an opportunity for a disputant to file the application to raise the dispute, and the respondent shall be directed to file a written statement with appropriate proof. Thereafter the PLA shall proceed with Mediation / Conciliation of the dispute and resolves it.
DEBT COUNSELING to NEGOTIATION & MEDIATION – A Case Study of FLM – Farmer – Lender – Mediation in the USA, by the University of Minnesota, under the Agricultural Credit Act, 1987.
Agricultural Credit Act of 1987 was passed in the USA to create a nationwide FARMER-LENDER-MEDIATION (FLM). The programmer is required that Federal agencies help and facilitate negotiations about credit problems. FLM is having 22 years of history and 35 states in the USA participate in FLM.
FLM PRACTICES: – Trained and Neutral Facilitator / Mediator to assist parties in Negotiation in a dispute. The Mediation process followed is confidential, informal, cheap, and quick. It facilitates open communication between parties, and creates a non-hostile environment, and treats parties with dignity with well-defined rights and liabilities of parties, and produces agreements that are acceptable to all the parties.
The first step in FLM is an ORIENTATION SESSION, where the Mediator and a Financial Analyst meet with the borrower and creditor to explain the process and determine the requirements for financial information or clarity needs to be prepared and explained.
The second step is that the parties sign an agreement to MEDIATE, followed by explaining the confidentiality, immunities to the Mediator, good faith in participation e.t.c.
Thirdly, over a period of 60 days, the borrower/creditor and Mediator meet regularly to design an acceptable agreement.
In 2008, the Minnesota FLM, opened 2002 mediation cases, and nearly 80% of the mediated cases reached some kind of settlement, which helped the farmers to stay in business, lenders got paid and people stayed in their communities. The total debt addressed in the Mediation case session was over 156.3 million US Dollars.
FLM – Minnesota Extension MANDATES that a creditor with a secure debt for more than 5000 Dollars against an agricultural property MUST offer mediation before proceeding with foreclosure or repossession or cancellation or collection of a judgment against a farmer.
FLM Mediator may advise, counsel, and assist the parties’ ways to come to an agreement. Mediation often requires compromise on the part of the debtor to change the operation to make it more profitable; or to liquidate the asset the creditor ( bank) may need to do by restructuring debt and security; or by re-scheduling loan re-payment.
SUMMARY
The face-to-face joint decision-making process, with trust built-in, is the hallmark of Debt counseling and Mediation. The resolutions found in the process are mutual, self-respecting, and consensual by avoiding the usual tension and frustrations to a win-win debt recovery process.
Thus, the non-adversary process and informal practices, with a perceived value of certainty, objectivity, openness, in the mediation process, along with the pre-mediation counseling session, has reposed greater confidence in the minds of debtors to rely upon these alternative procedures and practices over the traditional adversary litigation practices, and the practice of debt counseling cum mediation is all set to inspire the opulence of debtors and creditors equally.
CONCLUSION
Considering the backdrop of the case study of the University of Minnesota, USA, and my Indian experience in Debt Mediation, I understand that the scope of Mediation, especially with a domain-specific Mediation in Banking and Finance, is enormous for India and the rest of the World, in the context of exhaustive process and procedures of litigation in Court of Law.
Hence, DEVELOPING PROCESS & STANDARDS for GLOBAL DEBT MEDIATION is the need of the hour, and the Global Mediation Institutions can take a lead to facilitate DEBT MEDIATION services is recommended, by creating a pool of DEBT MEDIATORS, and by expediting with global standards, process and programmers, in consultation with national rules and regulations in the backdrop of general mediation practices, and to develop programmers in specified regional and cultural environments can be marvelous for the Mediation in the coming days.
POTENTIAL SOLUTION *
The author’s call for global debt mediation standards deserves a concrete architecture. The conflict underlying every debt dispute is structurally the same: a creditor who needs repayment more than victory, and a debtor who needs a viable future more than escape. Because their deepest interests overlap, debt is among the most mediation friendly of all conflict types, and the Minnesota results confirm it. A workable framework rests on four pillars.
First, sequence the process as counseling, then mediation. The pre mediation counseling session is what distinguishes debt mediation from ordinary commercial mediation: a debtor cannot negotiate meaningfully without understanding their own numbers. A standard protocol would therefore mandate an orientation phase with an independent financial analyst, following the FLM model, in which a realistic household or business budget is prepared before any settlement talk begins. Crucially, the counseling body must be institutionally independent of the lenders, funded through a levy on the financial sector as a whole or through legal aid structures, so that the weakness the author observes in bank sponsored counseling centers is designed out from the start.
Second, connect mediation to the enforcement moment. The single most effective rule in the Minnesota program is the mandatory offer of mediation before foreclosure or repossession. Adapted to other jurisdictions, a creditor seeking to enforce secured debt above a defined threshold would first present proof of a genuine mediation offer. This costs the creditor little, since enforcement remains available if mediation fails, but it opens a protected space at precisely the point where debtors otherwise face the machinery of law alone.
Third, standardize the toolbox rather than the outcome. Global standards should define process quality, mediator training in financial analysis, confidentiality, good faith participation, documentation of settlements in enforceable form, while leaving the substantive solutions, interest reduction, term extension, partial waiver, restructuring, asset based solutions, to the parties and their national law. Regional and cultural adaptation, which the author rightly emphasizes, then happens where it belongs, in the practice rather than in the principles.
Fourth, build the human dimension into the standard itself. Because debt distress carries documented health and family consequences, protocols should include referral pathways to social and psychological support services alongside the financial process. A settlement that repairs a balance sheet but leaves a family broken is only half a resolution; the dignity of the debtor and the legitimacy of the creditor’s claim must both leave the room intact.
An international mediation body that codifies these four pillars into a model Debt Mediation Protocol, trains and certifies a dedicated pool of debt mediators, and partners with central banks and legal aid systems for national rollout, would convert the author’s appeal into an operational global instrument.
* Added by the WMO Editorial Team
REFERENCES *
- The Arbitration and Conciliation Act, 1996 (Act No. 26 of 1996), India, Part III (Conciliation).
- The Legal Services Authorities Act, 1987 (Act No. 39 of 1987), India, including provisions on Lok Adalats and Permanent Lok Adalats.
- The Mediation Act, 2023 (Act No. 32 of 2023), India (enacted following the parliamentary process referenced in the article).
- Reserve Bank of India. Guidelines on Financial Literacy and Credit Counselling Centres, Mumbai.
- Agricultural Credit Act of 1987, Public Law 100 233, United States Congress.
- University of Minnesota Extension. Farmer Lender Mediation Program, program documentation and annual reports, St. Paul, Minnesota.
- Minnesota Statutes, Chapter 583 (Farmer Lender Mediation Act).
- Nolan Haley, J. Alternative Dispute Resolution in a Nutshell. West Academic Publishing, St. Paul.
- World Bank. Insolvency and Creditor/Debtor Regimes: Principles and Guidelines, Washington, D.C.
- Ibsen, H. (1879). A Doll’s House (source of the opening quotation).