Disappointed That Supreme Court Didn't Explore Mediation In Ayodhya Case Despite Possibility Of Settlement : S Muralidhar

Senior Advocate and former High Court Chief Justice Dr S Muralidhar recently expressed disappointment with the fact that the Supreme Court did not pursue the option of a negotiated settlement in the Ayodhya-Babri Masjid dispute, despite the talks being close to fruition.

He mentioned that on the date of reserving judgment, the Court-appointed mediation panel (comprising Justice Ibrahim Kalifulla, Sri Sri Ravi Sankar and Senior Advocate Sriram Panchu) reported that a settlement had been arrived at between some parties, with the Sunni Waqf Board agreeing to relinquish the claims subject to certain conditions. However, the Court did not accept the settlement, saying that it was not signed by all the parties.

Whenever parties express the possibility of a settlement, Judges usually encourage them to settle the matter, he said, drawing from his experience as a Judge. But this attitude was missing in the Ayodhya case.

"There seems to have been a conscious decision not to push this mediation process forward, although the mediators were telling the Supreme Court that a settlement has been arrived but not signed by all the parties. So if they(judges) had sat with the parties, may be, some negotiated settlement, that option could have been considered," he opined.

In his address at the AG Noorani Memorial Lecture, he pointed out that in the Ismail Farooqui case, the Supreme Court had expressed the hope for a negotiated settlement of the dispute. But the 5-judge bench which decided the matter in 2019 did not actively consider that appeal, he lamented. He asked what the "tearing hurry" was in deciding the matter on merits despite it being on the verge of a settlement.

"What was the tearing hurry? Why could they not have waited a bit longer? The only explanation is November 9, 2019 - the date of the verdict- is about ten days before the retirement of Justice Gogoi. This is an issue which was too big to be hurried through," he said.

He wondered if the judges of the bench got the time to read the draft of the judgment, which runs into thousands of pages, given the fact that it was delivered within a month of reserving the judgment. "I am disappointed that the mediation option was not explored when there was a possibility of that," he said.

He was also critical of the Supreme Court not pursuing the suo motu contempt it initiated against the then UP Chief Minister Kalyan Singh and other government officials for violating the undertaking given to the Court in the Babri Masjid case. The contempt matter was finally taken up in 2022, almost after thirty years, when the Court closed it saying "What is the point in flogging a dead horse?"

“This is institutional amnesia, which in my view is unforgivable, of an act which the Supreme Court found was an egregious crime," he said.

During his address, he discussed the legal history of the Babri Masjid case in detail and commented that the destruction of the Babri Masjid changed the course of our political and legal history.

"It's the turning point in how we as a judiciary responded to all these situations, where we were called upon to test the value of secularism. Do we abide by it? Are we serious about it? Or are we compromising it? These questions emerged from this one incident," he said.

He questioned the legal basis of the Supreme Court's 2019 judgment which allowed the construction of Ram Temple at the spot where the Babri Masjid stood before its demolition. He said that there was no "logical outcome" in the judgment and the conclusions did not square up with the findings, which he termed as "astounding".

He also voiced concerns about the Supreme Court not sticking to its view expressed in the Babri Masjid case regarding the importance of the Places of Worship Act. Despite the judgment upholding the Places of Worship Act, suits are popping up like hydra heads across the nation.

"What I'm concerned about is sticking to your judgment on the Places of Worship Act. There are at least five pages devoted to the Places of Worship Act. And what do you do in August 2023 (in Gyanvapi case). You say if somebody wants to have a survey in a non-invasive way, we will allow that. So what has happened. You have not stuck to your own order and you allowed it to get diluted. And that has serious repurcussios. Today, there are 17 suits all over the country. Somebody says there is a Shiv Ling. Another party says it is a fountain. Then it becomes a matter of dispute. You could have avoided all this by saying - we will not entertain any fresh suits."

Muralidhar commended former CJI Sanjiv Khanna for temporarily halting all such suits in December last year. "It is very commendable that Justice Sanjiv Khanna put a temporary halt. But those are all waiting in the wings. The sooner the court decides the validity of the Places of Worship Act, is better," he said.

He also questioned the direction issued in the judgment to the Central Government to frame the scheme for the temple construction, as such a relief was not sought by any of the parties.  

Muralidhar expressed surprise at the "addendum" to the judgment, with the judge who authored it remaining anonymous, in which there were observations regarding the belief of the devotees about the existence of the temple. He said that the observations in the addendum were in conflict with the findings in the main judgment. He also quipped that the main judgment itself was authorless.

"This is an authorless judgment. So-called authorless judgment. But the author himself said that he wrote it after talking to the deity. So there is no problem with that," he said.