Editorial 1: A Wayanad story
Introduction
Kerala is a state whose resilience has been tested time and time again. Monsoons are now welcomed with a great deal of caution and worry. Homes, livelihoods, and a feeling of peace and safety are lost every year.
Landslides in Kerala
- According to the central government data, Kerala faced the highest number of landslides between 2015 and 2022. Out of the 3,782 landslides reported in the country, 2,239 were reported from Kerala.
- Kerala’s annual landslide problem has again put the spotlight on the reports of the Madhav Gadgil Committee (2011) and the K Kasturirangan-led High Level Working Group (2013), as well as the resistance to their recommendations.
Gadgil Committee Recommendations
- The areas of Wayanad that have been devastated by the landslide were among those that were recommended to be demarcated as Ecologically Sensitive Areas by the Gadgil Committee.
- Ecologically Sensitive Areas were graded into three categories based on their environmental fragility.
- Several restrictions were proposed to be placed on construction and developmental activities, including a ban on mining, quarrying, polluting factories etc.
- According to the Gadgil Committee Report, in the Ecologically Sensitive Area-1, no forest land could be changed to non-forest land and agricultural land could not be changed to non-agricultural land. Sulthan Bathery, Vayittiri, and Manantavadi in Wayanad district were placed in highest category of ecological sensitivity.
- The report highlighted the importance of involving local communities in any conservation effort and ensuring that their livelihoods are not adversely affected by these policies.
- It also recommended that tourism in the region be regulated to ensure that it remains environmentally sustainable and does not disrupt the region’s fragile ecological balance.
Resistance to Committee Recommendations
- The recommendation to prohibit change of land-use led to a group of farmers protesting in the hilly regions. Protests spearheaded by all sections of the political class erupted in 2013 in Kerala and other southern states against the perceived imposition of the report on the public, without stakeholder consultation.
- Both the Gadgil and Kasturirangan Committee reports were also criticised by various sections as being too “environmentally forward” and not being people-centric enough.
- The public pressure forced the government at all levels from carrying out any of the measures they recommended.
Preparedness regarding ecology related disasters
- Years of action and inaction determine the outcome of a natural disaster.
- Witnessing the horrors of Wayanad landslide, it is perhaps time to not just rebuild, but build better.
- This includes not just rescuing people and communities from the present disaster, but also building safeguards against all such tragedies in the future.
Conclusion
Wayanad’s story tells us that environmental conservation cannot be a top-down endeavour. Adoption of conservation measures requires the support and participation of the people. People deserve the infrastructure, political will, and environmental policies that take into account their needs and livelihoods.
Editorial 2: Towards Dispute Irresolution
Introduction
Government outlined new guidelines for arbitration and mediation in contracts related to domestic procurement. While it ostensibly promotes mediation, it explicitly signals a shift away from arbitration for government undertakings.
Drawbacks
- Once the current pipeline of arbitration cases will be over, future contracts will likely resort to litigation through the traditional court system. This will significantly increase the burden on an already stretched legal system.
- This decision will have negative repercussions for private litigants (individuals + companies), Ease of Doing Business, FDI, and legal system as a whole.
- It will put additional pressure on the already overburdened courts, likely causing delays in final outcomes and increasing court interference.
- It will make appeals process more expensive and will prolong the resolution of disputes.
- With the Government being one of the disputants, the litigation will frequently reach the Supreme Court.
2015 Amendments
- The landmark 2015 amendments were aimed at establishing India as an international arbitration hub.
- The main objective was to reduce the time taken in courts.
Incorrect Perceptions leading to recent amendments
- At the heart of recent amendments is the concern that matters are being resolved too quickly. It is baffling that very reforms that improved India’s Ease of Doing Business ranking would be reversed for being too successful.
- Arbitrations are being lost due to inferior quality or perceived corruption of arbitrators. This highlights 2 voices on the issue:
- On one hand we tout India as an arbitration hub, emphasising the high-quality talent available here.
- On the other hand, we criticise our own arbitrators.
Real Issue
- One party often pays their lawyers poorly which ends up facing a highly qualified team of lawyers on the other side.
- Arbitrations are not lost because of corrupt arbitrators; they are lost due to bad facts and poor-quality legal representation.
- Solution to the issue of poor quality/corrupt arbitrators is accreditation and training, not banning arbitration and tarnishing an entire community.
Ray of Hope
- An increase in commercial court litigation.
- This shift could lead to the development of robust jurisprudence in areas like damages, indemnities, discovery and trial principles.
- India needs to expand its law on damages, and parties should push for more frequent use of indemnities.
- The increased volume of commercial litigation will create a demand for skilled trial lawyers adept in litigation, damages and cross examination, ultimately strengthening the overall legal ecosystem.
Conclusion
It appears that Indian arbitration is dead for now. While the immediate future for India’s arbitration industry seems grim, there is a glimmer of hope in the potential for long-term improvements in the country’s legal infrastructure and the development of jurisprudence in commercial law.