"Even If There Is Only 1% Chance Of Success, We Would Like To Try Mediation":SC [Courtroom Exchange In Ayodhya Hearing]

The Supreme Court on Tuesday granted 8 weeks' time to the opposite side to examine the official translations of the oral evidence filed by the state of UP besides the translated copies of the exhibits made available by the parties.

Further, the five-judge bench headed by Chief Justice Ranjan Gogoi decided to assemble again on March 5 to consider the question of reference of the Ram Janmabhoomi-Babri Masjid dispute to mediation under section 89 of the CPC, to proceed concurrently with the exercise of examination of the documents to effectively utilise this time of 8 weeks.

At the threshold of the hearing on Tuesday, the Chief Justice observed, "Please don't make any prayers at this stage...We would like to read to the Ld. Counsel the copy of the report of the Secretary General, signed by the court registrar, regarding the status of the case documents, how the registry went about the order of January 10, how locks were opened, how the seals were opened, what was found..."

The relevant portions of the report, as read out by the Chief Justice, highlighted that of the records received from the Allahabad High Court, not all documents are accompanied by English transcripts, and that there is no absolute compliance with Orders 8 and 19 of the Supreme Court Rules. The report also indicated the strength of the official translators in the Supreme Court registry and the time to be taken in the exercise.

"Solicitor General Tushar Mehta has filed translated copies Of depositions. We presume whoever wants to rely on exhibits has given translated copies of the same...but We have no indication as to whether the translations are acceptable to all. Once the arguments begin, We don't want the content of the translations to be disputed, delaying the court proceedings...There are 4 suits. One was dismissed. There are numerous appeals...several counsel on both sides...do we understand the translations by the state of UP and by the other parties are acceptable to all? If yes, then we can proceed with the hearing...", inquired the Chief Justice.

At this point, Mr. Vaidyanathan, for Ram Lalla, indicated the earlier order dated August 11, 2017 where the court had directed all concerned to file English translations of their respective exhibited documents, besides requiring the state of UP to file English transcripts of the entire oral evidence. Noting that no adjournment may be sought for this purpose, the top court had envisaged copies of these translations to be handed over to all the counsel appearing for the parties- "This was complied with and both the sides agreed to proceed on that basis"

He relied on another order of February 8, 2018 directing the Registry to make available the copies of the videos to the advocates of the parties to the appeal, besides allowing the filing of documents exhibited before the Allahabad High Court, the exemption from filing official translations and for the volumes to be filed in seriatim. In respect of the books exhibited, the court had considered requiring the translation of only the first page and the portions relied upon to be furnished.

Further, he drew the bench's attention to an order dated March 14, 2018, again in context of the translations.

"You are trying to show that the examination has already been done? Is there a consensus that the translations are acceptable?", asked the Chief Justice.

Replying in the negative, Dr. Dhawan, representing the Sunni Waqf Board, advanced that his instructions are to examine the state of UP's translations- "On the earlier occasion (on January 10), Your Lordships had insisted that it is the official translators who will do it, but they said they can only do 12 a day...We need to examine the translations to see whether there are mistakes or not..."

"They were given this opportunity to examine! This exercise was done where we sat down and exchanged the documents", countered Mr. Vaidyanathan.

"Don't put words in my mouth! We haven't examined UP's records! This case is of such importance where each exhibit, each deposition counts! Every time, someone can't just stand up and argue that this was done or that was done!", said Dr. Dhawan.

"We may come to the conclusion that we don't want to rely on them or want to offer something else after the exercise...some exercise was undertaken earlier but then the case shifted to the question of reference (to a larger bench for the reconsideration of the 1994 Ismail Farooqui decision)...We were waiting for official translations. This penultimate exercise is needed whether they are happy or not!", he continued.

At this juncture, Justice S. A. Bobde extended a clarification, "There seems to be some miscommunication. It is not something which was to be done by the Supreme Court registry. It is the translation by the state of UP which is ready, which you say your side has not checked for veracity. If you agreed with the official translations filed by UP, we could commence the hearing"

Stressing the right to examine, Dr. Dhawan repeated that the constitution bench has earlier contemplated the official translations to be by the court's registry. He added that he is, however, ready to argue on the first few points- "We had come to argue the case only when (Justice Ashok Bhushan) had asked me to argue the reference"

"At the first stage, you can examine UP's records. Suppose you agree that they are 30% correct, the need for official translation is reduced to that extent...", suggested Justice D. Y. Chandrachud.

Intervening, Mr. Vaidyanathan persisted that this has already been done. He referred to the order of December 5, 2017, where the court had required the AORs of both sides to "work in harmony" and ensure that all documents are filed in a timely fashion, that all pleadings are duly exchanged, that a common memorandum is filed when all documents are ready. The registry had been directed to allow an inspection of the documents by either side in the event of any problem. Further, the AORs were to intimate the Registry in case the record is found to be incomplete, which would then place the matter before the CJ on the administrative side.

"The court had hoped that the advocates will come prepared to argue the matter and not seek adjournments on this score! And this was in 2017! We are now in 2019! The advocates have sat before the registrar and sorted it out!", he contended.

When the Chief Justice commented that the court cannot waste its time on disputes regarding the veracity of translations, Mr. Vaidyanathan argued, "Disputes can always arise, but there is no bonafide in this! As per the orders of this court the parties were instructed to sit together and point out any disputes to the registrar! There were no such objections by any AOR! Now to raise this issue two years later is inappropriate, particularly when they have already had this opportunity!"

"The consensus is in regard to exhibits, not oral evidence...", ventured Chief Justice Gogoi.

As Mr. Vaidyanathan submitted that even oral evidence had to be translated under the order of August 11, 2017, the Chief Justice asked him to show an order by which the parties have agreed to the translations, now that Mr. Mehta has filed it.

"Wherever they did not agree, they have filed their translations!", another counsel advanced- "They did not avail of the opportunity before the Registrar! They should have questioned the veracity at that stage! They cannot be allowed to ask for this opportunity indefinitely!"

Even Senior Counsel Ranjit Kumar claimed that the advocates had sat in the registrar's office and sorted everything out.

Repudiating these averments, Dr. Dhawan argued, "In so far what has been argued, I take objection to two words- 'bonafide' and 'appropriate'. This is not the time to make these contentions. We are bonafide trying to get the record to the court. We are just trying to assist the court. It cannot be adversarial...Two judges here know that at the outset, I had come to argue before this court decided to first consider the question of reference. The documents I had brought are still here. The reference went on for months. So This accusation that we don't want to argue is unacceptable. We want to argue!...As Your Lordships pointed out, the affirmation of the translations is in respect of exhibits (he quoted excerpts of the December 5, 2017 order). The parties were unable to get together. No common memorandum was filed! We have never examined UP's official translation..."

"Justice Chandrachud suggested narrowing down the scope. We will go a step ahead and even examine the relevance so Your Lordships will have a much narrower arena to rule on...", he continued.

Senior Advocate Dushyant Dave also urged that both sides sit down and analyse the official translations with the assistance of the registrar, emphasising that no side has relayed that the translations are acceptable to them and that there has been no occasion to ascertain the truthfulness of the documents.

Placing reliance on yet another order, one dated August 10, 2015, Mr. Vaidyanathan sought to show that, in view of the translations having been found to be unsatisfactory, the court had required the advocates to appear before the registrar to work out an agreeable method by which documents may be translated, collated, compiled and filed, so as to prevent delay in the hearing of the appeals on account of any deficiency in the records- "Four year henceforth, we are here again? This is not fair!"

"Should we go through all the orders one-by-one? That would be more appropriate!", commented Dr. Dhawan.

Justice Chandrachud also indicated two meetings of the registrars in January, 2017 where it was noted that none of the Advocates had gone through the documents and the exercise was found to be pending.

As Mr. Vaidyanathan reiterated that the order of August 11 had followed on the heels of that state of affairs, the Chief Justice inquired from Dr. Dhawan, "Suppose we feel you should have a look at UP's official translations with regard to relevance and admissibility, within what time frame do you intend to undertake the same?"

"Suppose we agree with you and allow you 6 to 8 weeks for the inspection, pending your response, what would be the opinion of the parties if we invoke section 89 of CPC?, probed Chief Justice Gogoi.

"89 is a mandate of the court. That is something we are considering seriously, Particularly because this issue is not adversarial. There is No private property involved, only the public right of worship, and yet it is so contentious. Even if there is 1% chance of success, We would like to take it. It would of course be subject two conditions- firstly, it shall be confidential. No third party shall make comments and jeopardise the process. Secondly, it is not a matter of argument. It is an endeavour for a more lasting peace", weighed in Justice Bobde.

"Since it is to run concurrently (with the preparation of the case records), I have no objection to that. But there are 8 Muslim parties and 6 Hindu parties. The area of unhappiness or happiness was that High Court gave 1/3rd of the property to the Nirmohi akhada. They have objected to the deity, saying it only came in 1989. That is a problem between them. We took the view that 1/3rd was given to the Nirmohi Akhada, 1/3rd to the deity and 1/3rd to the muslims with the rider that if they can't be accommodated on the site, then they may be moved elsewhere...what would be measure of mediation? There are interstate differences...how will the mediation proceed? They are quarreling among themselves that the deity is nothing? Your Lordships have to determine the time frame. It is a notty issue..."; submitted Dr. Dhawan.

Justice Bobde reflected that an idea as to the time frame could be had only after a discussion with the mediators.

"It (mediation) may weigh on our side because of the interpretation or the approach, the progress or the lack of progress at this stage of our democracy...if Your Lordships could say that the media would not cover it time and again...", added Mr. Dave.

When Justice Bobde stated that it would be an order of the court, Dr. Dhawan conceded that "it is a very important suggestion" and that they "would not oppose anything of the court".

"It has been tried more than once...religious dignitaries have sat together...in my view, there is not much of a meeting ground...", Mr. Vaidyanathan began.

"Do you sincerely think the entire dispute from so many years is about property? We can only decide in respect of the property, but We are considering a possibility of healing relationships", remarked Justice Bobde.

"This court has noted, For the purpose of the stay, that there is no dispute as to the birth of Lord Ram in Ayodhya. What is disputed is whether the location of the Babri masjid was the place of birth of the Lord. That is why it is a title dispute", replied Mr. Vaidyanathan.

"We are not denying that. We want a perspective in the matter...The resolution...we understand it is a contentious issue, but to point out what the dispute is not the best response to mediation", observed Justice Bobde.

"Mediation has been tried several times. Things have not worked out as everybody wants the matter to be decided. Mediation is not possible or agreeable, and hence, Your Lordships may decide the matter at the earliest", prayed Mr. Kumar.

"I am not going into the merits, but there are number of issues. When the mediation was first attempted between 1991-93, the Muslims had only wanted it to be proved that it is the exact same spot of the birth (of Lord Ram)...It would be in the larger interest for Your Lordships to have it (mediation) again...we are agreeable, since it will run concurrently. But let there be an in-camera meeting when mediators are appointed...", advanced Dr. Dhawan.

Towards the end of the hearing, BJP leader Subramanian Swamy sought the court's leave to make submissions on his plea for the right to pray.

Objecting to the same, Dr. Dhawan contended that Dr. Swamy "is not in the case", his intervention application having been denied last year. But the Chief Justice noted that Dr. Swamy's earlier writ petition in the same behalf had been revived by the order disallowing the intervention.

Making a brief argument, Dr. Swamy advanced, "a large population of Hindus is not concerned with who owns the property but with the right to pray where Lord ram is believed to be born. No scientific proof is needed for this (He cited instances of the Al-aqsa mosque and the birth of Christ). Faith is not subjected to judicial review and, therefore, even the criminal law concurs with what a large number of people feel...Narasimha Rao government sought to enforce a solution and subsequently, there was an examination (as to whether a pre-babri masjid temple existed at the site)...Ruins of a very large temple have been found...any compromise must include the Hindus' right to pray where the Lord is believed to have been born...even the Supreme Court has allowed for a make-shift temple..."

In response, Dr. Dhawan put forth, "this was originally converted into an intervention application and we had taken the stand that no intervention of this nature could be permitted. It is a matter for the parties and nobody else and Your Lordships had passed an order to that intent...the mosque was demolished and the right to pray was suspended...if Your Lordships were to decide this writ petition independent of these proceedings and the right to prayer is granted over and above the entire access, then it has to be decided first...if a suspended right is allowed as an independent right flowing from Part III, what is the point of hearing this case?"

Dr. Dhawan also pleaded that the writ petitions challenging the Ayodhya Acquisition Act of 1993 should be decided before any further proceedings- "It will be a review of Ismail Farooqui after 25 years. If Your Lordships are inclined to hear it, the substratum of the suits will disappear...such a writ petition should not be entertained and, if at all, it is, then it should decided at the outset".

The bench arose with the Chief Justice assuring Dr. Dhawan of an answer in these two respects when the bench re-convenes on March 5. 

Order

"As per the report of the Secretary General of the court of January 19, the state of UP has submitted official translations of oral evidence running into 20, 000 pages. We desire to know whether these translations are acceptable to all parties before commencing the hearing, so that the requirements of Orders 8 and 19 of the Supreme Court Rules can be dispensed with. Senior Counsel Rajeev Dhawan and Dushyant Dave have said that they have not had the occasion to go into the said translations, while Senior Advocates C. S. Vaidyanathan and Ranjit Kumar have submitted it is too late in the day to raise this dispute. We are of the view that to proceed with the hearing, it is necessary to have on record the translations Of the depositions as well as the exhibits in which there may be no controversy. We are told that the official translations of the depositions filed by the state of UP as well as the translated copies of the exhibits made available by the parties have been received by all concerned. The registry is anyway directed to make available copies of the said documents to the parties which wish to obtain the same. We direct the parties to satisfy the court as to the accuracy and relevance of these documents within 8 weeks (earlier, the Chief Justice had considered granting 6 weeks, but increased the period to 8 on Dr. Dhawan's insistence)...", Chief Justice Gogoi dictated the order.

In respect of the proposal for mediation, the bench recorded, "Court-appointed mediation with utmost confidentiality could be initiated to come up with a solution. A period of eight weeks that we have allowed to make the documents ready for hearing could be effectively utilised to resolve the issue amicably. With regard to the mandate under section 89, there seems to be some hesitation on the part of Mr. Vaidyanathan and Mr. Kumar ('not hesitation. We are not agreeable', said Mr. Kumar. 'We will do nothing against your wish', assured the Chief Justice. Dr. Dhawan also added that the bench may note that contesting side is relaying its consent for mediation in the larger interest). The mediation suggested by the court is in the nature of mandate under section 89 and to only effectively utilise the time of 8 weeks. We defer the reference to court-appointed mediation of the matter to when this bench will assemble next on March 5"