Updated: Aug 28, 2020
This Article has been authored by Udisha Mishra, a second-year law student at West Bengal National University of Juridical Sciences, Kolkata.
In the present era, it can be witnessed that people prefer various alternate dispute resolutions mechanisms over the age-old process of litigation for getting their altercations settled. This position is because of the various benefits provided by these methods, such as confidentiality, timely result, etc. Usually, as the commercial or civil or matrimonial cases have a scope for compromise, mediation is preferred to other methods of resolution because of its amicably resolving nature. But this general perception shook when in Ayodhya-Babri Masjid case, where the faith and belief of roughly whole nation were at stake, the Supreme Court sought mediation for resolution. It was for the first time in India, that to resolve a dispute that stemmed from religious differences or say religious violence, this process was opted. Though mediation in this instance failed, it opened the pandora box about the use of mediation in resolving such religion-based disputes. The discussion in this article is regarding the intricacies involved in the process of mediation resolving religious disputes.
What is Mediation?
Mediation is a process where the parties to the dispute choose a neutral third party called mediator, who tries to facilitate the discussion between the parties and help them to reach a compromise, benefitting and acceptable by both. The mediator helps the parties understand the rights, duties, stakes and interests of the opposite so that the outcome of the process isn’t harsh on either. He is not allowed to give legal advises nor provide a solution, but rather be just the facilitator of the conversation so that the parties themselves reach a decision. Utmost confidentiality and neutrality are to be maintained by the mediator. The process of mediation, halts enmity to slink into the relations of the parties and helps maintain amicability throughout the process and even after. Thus, this process is usually undertaken to resolve matrimonial or civil disputes where there is an existing relationship between the parties that could be saved from bitterness.
In India, mediation, in the legal framework, was introduced by the Industrial Disputes Act, 1947, which provided complete machinery of the process. While at present, it is regulated by the Arbitration and Conciliation Act, 1996. According to the Order X Rules 1A, 1B and 1C of the Act there reside a power with the high courts to establish guidelines for the ADR machinery, to tackle the immense pendency of cases in civil courts. The legislature has also adopted various steps such as amending Section 89 of the Code of Civil Procedure,1908 to introduce ADR mechanisms, to facilitate ‘court-annexed mediation’.
Litigating Religious Disputes
Litigation is an age-old process which has been practised to resolve all the general disputes arising. Litigation processes are usually lengthy and expensive, these fallouts are the major reason that the idea of the alternative dispute resolution methods is developing at such a fast pace. These fallouts are common for general cases or cases with special needs. Litigating religious disputes is way more problematic than litigating any other general dispute as these disputes are not between and two general people but between two different communities. This element not only pressurises the adjudicators of the dispute but also affects the whole functioning of the bench. Litigation processes involve questioning and counter-arguments which further deepen the enmity between the parties and in the case when both the parties belong to different religions altogether, this process can shatter all that is left, destroying the social fibre of the nation. The decisions are also affected by political and public pressure and thus can be biased and unfair. For example, in Pakistan when a law was passed debarring the Ahmadis from referencing Muslim practises, the Supreme Court of the country upheld the validity of the law because of the immense political pressure it was subject to.
Appointing a Mediator in a Religious Dispute
The course of the mediation process is largely dependant on the mediator of the dispute. The mediator selected should be such that the faith of the parties remains intact in the process and the process is fair and unbiased. This is a very crucial step in such disputes because the disputes involve sentiments of a vast segment of the population and this should be error-free. An example of such a balanced mediation panel was seen in the Ayodhya Dispute, where the constitution of the panel was such that both the religious sects involved had equal representation. The panel was a combination of a Hindu spiritual leader, an expert Muslim Judge and an imminent mediator. In such a panel both the communities had equal representation by the people having immense knowledge in faith and with them was an expert mediator to work with the intricacies of the dispute management.
Various guidelines have been established around the world, providing qualities of the mediator in a religious dispute. Some of the common attributes are- the mediator should be able to form a conceptual framework so that he is able to understand the cultural and behavioural differences between the parties and should be well aware of the extent to which his decision would affect the parties to the dispute. He should not let his own cultural upbringing distort this process of amicable and fair dispute resolution. He should not generalise the people of the same religion and understand the varying practises of different sects. He should be able to come up with a way so that he can help the disputed parties to make them cognizant of the cultural impediments and help them overcome the same. This can be done by initiating a compromise or an interest-based negotiation.
Usually, the religious leaders are considered to be the ideal mediator to such disputes because of the extent of their knowledge about the religion and their influencing power over the people following the faith. With their understanding of the religion, it can be expected that they can put some new ideas for compromise of the table.
Practicality of Mediation in Resolving Religious Disputes
Mediating religious dispute not always guarantees success owing to the strict beliefs that each faith has and that they are not willing to compromise. Mediation is a process where the parties come to a compromise and decide on a solution which is acceptable and equal to both. When it comes to religious disputes, the parties stick to their demands, eliminating compromise of any sort because this might affect the self-esteem of the religious communities. The rigid dogmas followed by them, abstain them from lowering their demands and accepting the conditions places by the other. Other external factors such as political and public influences also have a minute share in affecting the outcome of the process.
In India, the Ayodhya dispute was the first time when we witnessed the formation of mediation panel to resolve such a delicate case in Indian History. One of the reasons stated for the failure of the process was that the whole dispute was politically coloured. Another reason is that the difference between the sects that were existing for more than hundred years cannot be just eliminated by a few hours of discussion with a panel of three people.
But in contrast, there have successful mediation cases around the world, for example, in 1972 the Sudanese Civil war came to an end with the help of the All African Conference Of Churches, which used Muslims and Christian religious texts in the mediation process to deal with the situation in an amicable way. Similarly, in the Nigeria Election 2007, two religious leaders James Wayu and Imam Ashafa along with the United States Institute of Peace, undertook the process of mediation to end the violence between Christian and Muslim communities.
Mediation in Religious Texts
While resolving religious disputes, the mediators usually take help of the sacred religious text of the communities to help them understand that this process of compromise is nothing new but something which has been there in these texts and should be adhered to. Matthew 5:9 of the Bible talks about a peaceful resolution of disputes while 1 Corinthians 6:1 encourages the believer to try to resolve disputes amicably rather than addressing the matter in courts. The Chapter Four of the Holy Quran talks about conciliation and peaceful resolution to maintain harmony in the society. Lord Krishna in Mahabharata, proposed various alternatives such as land concessions and kingdom-supervision-division to evade war between Pandavas and Kauravas. His stand was like a mediator, where he suggested ideas for compromise between the parties to resolve the existing disputes.
For religious disputes which possess the power to destroy the social fabric of the society, choosing mediation as a dispute resolution mechanism is a judicious choice because of its amicable dispute resolving tendency. This would not only help to reduce the burden of the litigation system in India but also would encourage peace and harmony within the society. Various important tenets of this process such as principle of impartiality and fairness and a righteous appointment of the mediator have been discussed and should be followed while undergoing the process. Disputes can only end when both the parties understand and respect each other’s’ rights and interest which cannot be done by imposing a blank judgement on them, but rather by a peaceful discussion followed by a healthy compromise.