As established in Part I, Part II will highlight the prevalent anti-mediation sentiments in the Indian legal sphere. This is followed by understanding and critically analysing the interaction of the Indian Supreme Court with mediation, before presenting concluding remarks.
Anti-Mediation Sentiments
Despite several clear advantages of mediation over other processes of dispute resolution, anti-mediation sentiments are prevalent in the Indian legal system. The government’s apprehension towards mediation can be attributed to government officers’ fear of being accused of corruption or acting ultra vires their authority or doing any other such action for which they can be held personally liable due to the quid-pro-quo nature of mediation.[1] Further, mediation also mandates confidentiality. However, there is a paradox between this confidentiality and the ability to access information of public interest under the Right to Information Act (hereinafter, “RTI”).[2] The reason for this is that government officials are entitled to confidentiality that comes with mediation. However, there is concern that decisions that are detrimental to the public, made during mediation, would not be accessible via RTI and would thus reduce the transparency of the government.[3] Public disputes present another crucial challenge. Due to the high number of stakeholders, finding representatives that would be respected by both sides of the dispute in order to avoid backlash and question the settlement’s integrity, can be tricky. One way to reduce the public’s emotional conflict is to appoint a mediator who is well liked and respected by both the parties. It is noteworthy that following this principle, outgoing CJI S.A Bobde suggested that the Mediation Panel which was appointed to resolve the Ayodhya Dispute in 2019 should have Bollywood actor Shah Rukh Khan as a part of the panel.
The legal community itself is not free from apprehensions about mediation. Mostly, this stems from the fact that mediation is a relatively new area and consequently many people have not yet fully understood or explored it. Lastly, there is also scepticism towards the ability of mediation to solve a dispute especially if the parties have deep rooted issues that have no middle ground. However, these concerns can be addressed through, inter alia, seminars, trainings, workshops etc., conducted by members of the Judiciary and Executive alike. As a first step, codification of the process would provide some semblance of clarity within the legal community as well the general public.
Supreme Court and Mediation
In the last decade, the Supreme Court of India has ordered some prolonged conflicts, like the Babri Masjid - Ram Janm Bhoomi Dispute and the Assam and Nagaland Border Dispute regarding 500 square kilometres of land, which are of public interest, to undergo mediation. Even though neither of the disputes reached a settlement successfully, they still are primary and crucial steps towards addressing the increasing backlogs of cases in the Indian judicial system.
Assam and Nagaland Border Conflict
The Assam and Nagaland conflict was amongst the first to be referred to mediation by the Supreme Court. In 1963, Nagaland was formed from the Assam Naga Hills district and since then Nagaland has been demanding for the portion of the hills that the state believes to have a historic claim over. Assam claims that Nagaland had encroached on over 66,000 hectares over the 434 km boundary that the two states share. This dispute is associated with multiple incidents where violence was observed and triggered the deaths of many and displaced several people.[4] There have been many instances where the two states tried to resolve this dispute amicably however, the boundary dispute remains unresolved since the past 55 years. These efforts have also included unsuccessful steps towards mediation.[5]
Babri Masjid - Ram Janm Bhoomi Dispute
The mediation of the Ram Janm Bhoomi - Babri Masjid case was momentous for mediation in India. This dispute originated in 1855. Briefly, the issue is regarding the control of land which is said to be the birth place of the Hindu deity Ram. But it is believed that the temple was demolished and a mosque (the Babri Masjid) was built in its place in 1528 by Mir Baqi, upon the Mughal Ruler Babur’s command. This dispute escalated in 1992 when the Masjid was destroyed during a political rally which in turn triggered riots across the country.[6] A case regarding the title deed of this land was filed before the Allahabad High Court which held that the land was to be divided into three parts; one of which was allotted to Infant Ram who was represented by Vishva Hindu Parishad, the second was allotted to the Waqf Board and the third was allotted to Nirmohi Akhara. The dispute was then referred to mediation by a constitutional bench of the Supreme Court of India. After a failed attempt at mediation, the Supreme Court held that the land belonged to the government and was to be given to a trust for building a Hindu temple. Further, 5 acres of land was allocated to the Waqf Board to build a mosque.
Conclusion
In conclusion, I believe that mediation of public disputes can provide a method of engagement that would incentivise honest and productive dialogue, and effectively address the issue of the increasing backlogs of cases and the long-drawn-out nature of litigation. Mediation is also likelier to produce a more harmonious outcome since it focuses on the needs of the parties in a more personal way than other methods of dispute resolution. Further, very often, the underlying controversies which lead to litigation of public disputes are not resolved even after the litigation ends. That satisfaction of addressing your interests and even the recognition by the other side is something that is unique to mediation. Interestingly, mediating issues of public nature can also help shape a participatory democracy, with active citizen involvement in matters of importance.
On the other hand, mediation is also believed to create a platform for underhanded deals in a formal manner. However, the author believes that in a mediation, since all the dealings are happening publicly, there is more transparency and accountability on behalf of all involved parties. Further, mediation of public disputes allows for room to conduct deliberations on creating legislation regarding the issue and reduces the possibility of undemocratic and discretionary decision making by ruling governments. Therefore, mediation can potentially be extremely beneficial for the judicial future of India. Having the public participate may not be the most economical solution but allowing them to choose the mediator that they would like to oversee the process can potentially create transparency for those issues which affect a large number of people. Not all conflicts are appropriate for mediation but it is crucial to identify those which are, to help the courts tackle the backlog and also provide a greater sense of satisfaction to the parties of the conflict.
Views expressed above are solely of the author.
[1]Sriram Panchu, ‘Mediation Practice and Law’, 2nd edn, LexisNexis, 2015
[2]Chitra Narayan, ‘Mediation Policy and Practice’, 1st edn, Oakbridge Publishing Pvt. Ltd, 2020
[3]Id.,
[4]Samudra Gupta Kashyap, ‘Explained: Assam v Nagaland, a Border Dispute of Five Decades’, The Indian Express, 22nd August, 2014, available at https://indianexpress.com/article/india/india-others/explained-assam-vs-nagaland-a-border-dispute-of-five-decades/
[5]Id.,
[6]Sushil Srivastava, ‘The Abuse of History: A Study of the White Papers of Ayodhya’, Social Scientist, Vol. 22, (1994), pp. 39-51, available at https://doi.org/10.2307/3517901
