Ayodhya mediation was ordained to fail and its award would have been open to legal challenge 

If there was any hope of success for the Supreme Court-appointed mediation effort in the Ram Janmabhoomi case, it disappeared within days of the team getting constituted.

The issue has now been tossed back to the Supreme Court, which had referred the vexed issue to the mediators. And even if the committee had managed to give a unanimous award, it would still have been open to challenge.

The court was optimistic; so was the panel. But more importantly, the parties to the dispute had no real faith in the process. Objections had been raised by Nimrohi Akhara, one of the key contenders, to the Centre's move to return ‘superfluous’ land acquired around the disputed 0.313-acre Ram Janmabhoomi-Babri Masjid area to its 'rightful owners', adding another layer of complexity to the problem.

There have also been serious doubts about the composition of the panel of mediators. The Nimrohi Akhara, one of the parties to the original dispute, had even moved an application in the Supreme Court finding fault with the mediation proceedings.

It complained that the proceedings at Faizabad had left a lot to be desired. Nimrohi Akhara wanted the panel of mediators to be joined by at least two more members and the venue shifted from Faizabad to New Delhi.

Similarly, several Muslim groups had raised serious objection to the inclusion of Art of Living founder Sri Sri Ravi Shankar on the panel as he has had a stated position on the issue. The yoga guru had repeatedly said that the only solution was for Muslims to give up their claim to the site and build another mosque in Ayodhya.

He further provoked Muslim public opinion by warning in an interview ahead of his inclusion in the panel that India would turn into Syria if the Babri Masjid-Ramjanmabhoomi controversy was not resolved soon.

Of the three members on the panel, Sri Sri Ravi Shankar certainly did not qualify to be a mediator in an issue where his known positions were in conflict with the views of some of the parties in the dispute. He failed the definition of a mediator as postulated by Justice D.Y. Chandrachud in one of his papers that the essence of mediation lies in the role of the mediator as a neutral facilitator.

The mediator is not an adjudicator, Chandrachud insisted. Incidentally, Chandrachud is one of the members of the constitutional bench that has referred the dispute to the mediation panel.

“The mediator is neutral. The neutrality of the mediator is akin to the neutrality of a Judge but the role of the mediator is completely different from that of a Judge…As a neutral, the function of the mediator is to enable the parties to arrive at a mutual and voluntary agreement,” Chandrachud said in his paper titled ‘Mediation -- realising the potential and designing implementation strategies’.

No doubt, the other two members on the panel -- retired Supreme Court judge Fakkir Mohamed Ibrahim Kalifulla and independent mediation expert Sriram Panchu –have an impeccable record.

Former Chief Justice T.S. Thakur, who gave the landmark judgment paving the way for reforming Board of Control of Cricket in India (BCCI), once acknowledged the ‘valuable insights’ provided by Kalifulla in enabling him to write such a verdict.

Justice Kalifulla himself delivered several important judgments, one of them providing the seal of Supreme Court approval to the introduction of Vedic astrology as a course of scientific study in Indian universities.

Sriram Panchu is a globally-recognised mediation and arbitration expert, who founded the Mediation Chambers, which offers services in mediation and arbitration to clients. President of the Association of Indian Mediators and a director on the board of the International Mediation Institute, Panchu has been instrumental in making mediation a part of India's legal system.

Panchu’s fellow activist Arjun Natarajan, however, had misgivings about the award. According to Natarajan, the mediation award could be haunted by the ghost of the judgment in what is generally known as the Afcons case, where a Supreme Court judge ruled that a mediation settlement can be assailed by way of a writ petition.

According to Natarajan, Afcons destroyed the very idea of mediation. He cited two more judgments, leading to the shocking consequence of making the institution or person to whom the dispute is referred by the court for mediation a Lok Adalat.

Consequently, any settlement issued by the Lok Adalat, even when duly signed by the parties and annexed to the award, can be later challenged in a writ petition filed under Article 226 and 227 of the Constitution.

Mediation has been tried out several times in the past in the search of a settlement for the Ayodhya dispute, but none succeeded. In 2010, a three-member bench of the Allahabad High Court, too, had tried mediation, but the process collapsed after the Hindu parties backed out.

Before the constitution bench headed by CJI Ranjan Gogoi and comprising Justice Arvind Bobde, Justices D Y Chandrachud, Ashok Bhushan, and S Abdul Nazeer referred the dispute to the mediation panel in March, the then CJI J S Khehar had in 2017 observed that Ayodhya dispute was a matter of ‘sentiments and religion’ and, therefore, it was best settled amicably among the parties rather than the courts pronounce a judgment. But the suggestion did not go anywhere.

Back channel efforts to informally find a solution had also been initiated with the involvement of the Muslim Personal Law Board during the premiership of Chandra Shekhar as well as P V Narasimha Rao, but without any success. With the demolition of Babri Masjid in December 1992, things were back to square one.

All this boils down to the fact that the complexities put the issue beyond the scope of decision making by the courts, which have all along followed an approach that betrayed such inability. The result this time too promises to be no different as more disturbing clouds gather on the horizon.