Editorial 1: The gruelling course of litigation in India
Context
Court scheduling and case management continue to be a hurdle that litigants face.
Introduction
Last month, the President of India, Droupadi Murmu, highlighted the issue of court delays. In her speech at the National Conference of the District Judiciary, she noted that these delays are what are making people hesitate approaching courts, as they fear that the pursuit of justice will complicate their lives further. She referred to this as the ‘black coat syndrome’, likening it to white coat hypertension — a condition where patients exhibit elevated blood pressure in clinical settings. While the term is symbolic, it underscores a real issue — that many people are reluctant to engage in litigation due to the gruelling process, which includes endless adjournments, numerous appeals, and escalating legal costs.
Factors Contributing to Judicial Delays
- A significant factor contributing to these delays is the Indian judiciary’s scheduling and case management practices.
- Effective case management: involving clear timelines for filing documents, conducting witness examinations, scheduling hearings, and limiting adjournments, are crucial.
- Without these, the court system struggles to move cases forward efficiently, exacerbating delays and frustrations faced by litigants.
- Court scheduling and case management have long been challenges within the Indian judiciary, significantly contributing to delays.
- Mechanisms such as Case Flow Management Rules were introduced for district and High Courts to streamline processes, set timelines, and create more predictable court schedules.
- Inconsistent implementation: However, despite their introduction in the late 2000s, these rules and other initiatives, that were aimed at improving scheduling and timely case disposal, have been inconsistently implemented, and with limited impact.
At the level of the district judiciary
- Challenge of implementing stricter rules: While stricter rules and rigid timelines are often suggested as solutions, the reality is more complex.
- It is crucial to recognise that all participants in the judicial system — judges, lawyers, litigants and witnesses — act with rationality and good intentions, though their actions are often influenced by various constraints and incentives.
- Court scheduling issues are deeply rooted in the complex interplay of these motivations.
- A holistic approach: that considers the psychological and behavioural aspects of all stakeholders is essential for meaningful progress. Let us look at the challenges in the district judiciary.
Challenges in the District Judiciary
- Role of Judges: Judges have a crucial role in enforcing case management timelines.
- But systemic pressures often compromise their ability to do so. Judges in the district judiciary have to prioritise cases, with directions from higher courts to dispose of these cases within a specific time or where target disposal numbers have been provided for case types.
- Impact of oversight: While such oversight aims to ensure timely justice, higher courts often impose deadlines without fully considering their impact on the overall scheduling in district courts.
- This forces district courts to allocate disproportionate resources to expedite certain cases, disrupting scheduling and creating delays.
- The Supreme Court of India and various High Courts have criticised this trend, noting that such directives often disrupt case management in district courts.
- A more balanced approach is needed, wherein higher courts’ deadlines align with district court operational realities to avoid exacerbating delays.
- Lack of Incentives for Judges to enforce deadlines: Various statutes and rules impose timelines for the disposing of cases or filing documents, but judges are often not incentivised to adhere to these deadlines.
- When extensions are permissible, judges frequently grant them beyond statutory deadlines, knowing that higher courts are likely to condone such delays if appealed.
- Judges who enforce these deadlines may face pressure from the bar, potentially affecting their career progression as they risk being labelled ‘difficult’ and subjected to constant complaints.
The Performance Evaluation System for District Judges
- The Units System: The performance evaluation system for judges of the district judiciary, known as the units system, exacerbates these challenges.
- Judges are awarded “units” or points based on the type and number of cases they dispose of, with different weights assigned to different case types.
- To maximise their units, judges might prioritise and dispose of the simpler cases quickly, allowing them to accumulate points more quickly.
- Focus on simpler cases: This can lead to a situation where judges focus on less complex cases to boost their unit count, potentially neglecting the more challenging cases that require substantial judicial intervention.
- By favouring cases that are easier to resolve and quicker to process, judges may inadvertently contribute to delays in more complex cases, which are sidelined or postponed.
The impact down the line
- Strategic Decision-Making by Lawyers: Lawyers significantly impact court scheduling and case management.
- Often handling multiple cases scheduled across different courts on the same day, they strategically decide about which cases to attend to based on factors such as the likelihood of adjournment, the importance of the case, or the perceived mood and predispositions of a particular judge.
- This often leads to adjournments in some matters.
- Unpredictability in case hearings: exacerbates this issue. Lawyers often do not have a clear understanding of when a particular case will be heard or the likelihood of adjournment, making it difficult to plan their schedules.
- Moreover, lawyers may request adjournments or deliberately delay proceedings if they perceive that the judge is likely to grant an adjournment, especially if their client has expressly asked for it.
- This lack of predictability and the strategic behaviour it encourages only adds to the congestion in court schedules.
- Impact on Court Congestion: The tendency to extend stays and interim orders further diminishes the interest of lawyers in actively pursuing a case.
- For litigants,obtaining a stay on a case can often be seen as a victory, especially in civil matters where a stay order may prevent any immediate adverse action.
- Consequently, once a stay is obtained, there may be little incentive in pushing for a speedy resolution, contributing to the backlog of cases.
Influence of Stays and Interim Orders
- Before a trial begins, the judge sets a schedule with specific dates for each witness’s testimony, and, accordingly, summons are issued.
- However, the timing of testimonies often becomes unpredictable due to changes in the court schedule, adjournments, and procedural delays.
- This disrupts daily life for witnesses, forcing them to leave their jobs, make travel arrangements and put personal responsibilities on hold, often without knowing when they would have to testify.
- The lack of a predictable schedule frustrates witnesses, is a financial strain, discourages their court appearances and contributes to trial delays.
Way forward: Need for holistic reform
- Holistic approach: To address court scheduling issues, a holistic approach is needed that goes beyond rules and timelines, and which focuses on incentivising all actors.
- Evaluation: Judges should be evaluated not just by the number of cases they dispose of but also by their ability to manage and resolve more complex cases within the prescribed timelines.
- The unit system needs reform: so as to prioritise complex cases that require substantial judicial intervention, encouraging a broader range of case management.
- Lawyers need better scheduling information: to reduce uncertainty and avoid unnecessary adjournments.
- Courts should implement predictable scheduling systems, introduce penalties for delays, and reward lawyers who adhere to schedules.
- Avoiding stay orders: Litigants should be discouraged from using stay orders and interim reliefs as delay tactics by making such orders temporary and subject to regular review.
- Witnesses require more predictability in court appearances, with advance notice and sufficient compensation beyond travel expenses to encourage their participation.
Conclusion
Technological solutions could enhance case management, providing real-time updates and the monitoring of timelines. Courts can adopt a data-driven approach to identify and address scheduling bottlenecks, improving overall judicial efficiency. Without reform that accounts for the human side of the system, any procedural changes will remain just that — paper reforms.
Editorial 2: The U.K. and ‘leaving lessons’ from the Indian Ocean
Context
In its decolonisation in the Indian Ocean, the U.K. must ensure that all island nations agree to maintain the fully protected environmental status of the Chagos archipelago.
Introduction
The Chagos islands in the Indian Ocean comprise seven atolls, with the northernmost atoll called Peros Banhos. Maldivians know the Chagos islands as Foalhavahi which are just 300 miles from Addu Atoll, the southern tip of the Maldives and where the United Kingdom had a Royal Air Force base on Gan Island (Maldives) until 1976. North of Peros Banhos, there are two reefs and a sandbank; another sandbank lies further north. These reefs and sandbanks are again closer to the Maldives. It is not just about proximity. Historically, these islands and shallows were a part of the Maldives.
Tracing history
- Historical Context: A letter from a Maldives Sultan, written in 1560. survives in a Portuguese archive in Lisbon.
- Here, the King of Maldives clearly refers to the Peros Banhos Atoll as belonging to the Sultan.
- Atolls and their names: The Atoll of FoaMulak is next to the Addu Atoll.
- It is not by accident that Maldivians call Peros Banhos as ‘FoaLhavahi’.
- These two atolls have much in common, and not just in their names.
- British Victorian historians Albert Gray and H.C.P. Bell, in 19th century work that deconstructed island names, suggested that the first part of the word of the island of Fólávaki is perhaps, the Malay ‘pulo’, which is island.
- Cultural connections: The winds and navigation are what connect these two atolls to the Malay Peninsula, now a part of Malaysia.
- Navigation connections: The Arab navigator Ahmad Ibn Majid would detail how after going around the Cape of Good Hope (South Africa), when travelling to the east, navigators would take the route that went from FoaLhavahi to FoaMulak, and then straight to the Malay Peninsula.
- Many people from the Maldives Atoll of FoaMulak have Malay features and Malay heritage.
- Accounts of FoaLhavahi: French traveller Vincent le Blanc, while in Pegu in 1640, picked up an amazing story.
- According to him, there was an island called Polouois towards the south of the Maldives, which can only be what the Maldivians call the island of FoaLhavahi in the Chagos islands.
- This island was ruled by the King of Achen in Sumatra. The King, who had many descendants from several wives, had given the island to one of his children, by name Argiac.
- Another island went to his eldest son Abdanic. This island can only be the Maldives Atoll of FoaMulak.
- When the king died, the two sons fought with each other; the elder boy sought the assistance of the King of Bengal, and defeated Argiac. FoaLhavahi came back to FoaMulak.
- Since then, FoaLhavahi remained uninhabited until slaves who were brought from Zanzibar, populated the Chagos in the late 1700s.
The Africa connection
- African Slaves in the Maldives and Chagos: During the same period, Maldives sultans brought slaves from Africa, and by the mid-1800s, the population in Male, the Maldives capital, had a sizable African population.
- It was the same slave traders who brought slaves to the Maldives and Chagos.
- It is very likely that slaves in the Maldives and Chagos were from the same African clans.
- British and French conflicts Over Chagos: The sovereignty of the Chagos islands depended on which side emerged victorious in the many British-French wars.
- By 1965, the Chagos islands remained under United Kingdom sovereignty.
- Colonial and post-solonial sovereignty: When Great Britain began to decolonise its Indian Ocean territories, there was no logic or reason why the islands should be handed to Mauritius.
- Maldives Sultans expeditions – in the late 1930s, the Sultan of the Maldives sent expeditions to the Atoll to count and mark with his seal the coconut palms on the Chagos islands.
- The last expedition was led by the father of the former Foreign Minister of the Maldives, Ahmed Naseem, who is of African descent.
- Traditional use of Chagos by Maldivians: For centuries, the Maldives have used the islands of Peros Banhos Atoll as a base for fishing expeditions.
- People would camp on the islands, catch fish, and cook, smoke and dry them before bringing them home.
The importance of marine conservation
- Depletion of fish stocks in the Indian Ocean: at a fast rate because countries are handing over fishing rights to greedy factory trawlers and purse seiners that operate from countries outside the Indian Ocean.
- The protected zones: The only zones in the Indian Ocean that are fully protected from industrial fishing are those of the Maldives and the Chagos territory.
- In the case of the Maldives, fishermen use pole and line, one by one — fishing techniques that have no bycatch (other fish or other marine species caught unintentionally) and are maintained at a sustainable level.
Conclusion
Great Britain must be congratulated for bringing the whole of Chagos under protected status. For Great Britain, the best and most respectable way to leave the Indian Ocean would be to discuss with the Maldives how this protected status can be maintained indefinitely. Britain must learn its ‘leaving lessons’. Leaving India in 1947 was good, but the human cost from Partition was horrific. It is vital that as the process of decolonising proceeds, all island countries of the Indian Ocean, including the Maldives, Mauritius, Seychelles and Sri Lanka, jointly agree to maintain the Chagos archipelago’s fully protected status, in the interests of marine conservation.
