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.
The disputant parties should get chance for Selection of mediator, otherwise it won’t get success to the mediation process.
Yes, the references by Courts , in India, to take note of this fact; and the choice of selecting the Mediator representing the parties in dispute, to be with them, and the Court appointing the Presiding Mediator may bring the desired results, possibly.