PENDENCY IN COURTS

A comparative analysis of courts across India

                                                                                                                                                                                                                                                                       Alok Prasanna Kumar 

Popular discussions of the problems facing courts in India end up conflating two different issues, namely the pendency and the delay, as one and the same. A figure of overall cases usually between 3 to 4 crores, pending in the Indian judicial system, is cited as a reflection of this problem. Not only do statements such as this fail to identify the actual problem, but they can also mislead any effort to understand its root causes. It is therefore necessary that the issues of pendency and delay be separated before any analysis.

A court has a "pendency problem" when the number of cases pending disposal is large relative to the number of cases filed and disposed in that court. A court has a "delay problem" when resolving the cases which have filed before the courts takes a long time. A pendency problem will usually lead to a delay problem but merely because a large number of cases are pending, it does not automatically mean that it's a "problem" or that it necessarily leads to a "delay problem". A single figure telling us how many cases are currently in the judicial system in India does not help us understand or appreciate either problem. For this, we need to look at the data in much greater detail and with a bit more nuance.

It has to be kept in mind that the Indian judicial system is one of the largest in the world given the size of the economy and the population. Even though the number of cases filed per person is not as high as in developed countries and the bulk of the cases are in fact criminal cases filed by the Governments, it still remains a large system. At present, it involves three layers, the district and magistrate courts (subordinate courts for short) at the bottom, the High Courts in the middle and the Supreme Court right at the top. While the High Courts are responsible for the administration of the subordinate courts in their jurisdiction, the Supreme Court is not similarly responsible for the administration of High Courts. Apart from the appointment of judges to the High Courts, the Supreme Court does not have a substantial say in the manner in which High Courts function. This is unlike High Courts which closely supervise and monitor the functioning of the lower judiciary in their jurisdiction.

For this reason, to properly appreciate the scope and magnitude of the pendency problem, it is necessary to break down the data High Court wise and State wise (for subordinate courts). All other things being equal, a state with a larger population will need more courts than a state with a lower population. Likewise, as research has shown, states with a larger economy are likely to have more cases filed than those with a smaller economy, all other things being equal. That still doesn't tell us however, whether a High Court has a pendency problem or not. This tells us, at most, that an Allahabad High Court (with jurisdiction over the state of Uttar Pradesh) will have more cases filed in a given period of time than the Sikkim High Court (with jurisdiction over the State of Sikkim).

One way of examining and understanding the pendency problem is to see how long, at present rates, will a given court take to clear the pending cases. Another way is to fix a time limit, say three years, and see how many judges it will take for the court to reduce the pendency of cases at current rates of disposal. The latter method, adopted by the Law Commission of India in its 245th Report on the "Arrears and Backlog: Creating Additional Judicial (Wo)manpower", is the preferable one since it not only identifies one of the key reasons for the pendency problem, i.e. lack of judges, but also provides a measured solution for the same.

This is not to say that merely increasing judges is a one-shot solution to the problem of pendency or delay in

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India's courts. It may be possible that the number of judges needed may vastly outstrip the capacity of the State to provide the infrastructure for judges. Further, it also does not address the "demand" aspect of the pendency problem resulting from a large number of cases filed in courts in the absence of adequate alternate dispute resolution mechanism and slow disposal due to weaknesses in procedural laws. Nonetheless, given the difficulty in comparing caseload from State to State, an assessment of shortfall judge-strength gives us a more useful indicator with reference to a particular State.

This paper will therefore adopt the Law Commission's approach in its 245th Report to assess the pendency problem in High Courts and District Courts in the States within India to see which States have the worst problems and which are comparatively better off on this front. It must be kept in mind that a case is "pending" as soon as it is filed and it is not necessarily a "problem" unless the numbers of such pending cases exceed significantly the number of cases filed. To that end, this article will look at how many such cases are "pending" and where does the problem lie precisely.

Number of additional judges required is calculated on the basis of the following formula:

Number of additional judges required = ((Cases filed in time period + pendency)/(number of cases disposed in time period per judge)) - present strength of judges

1.  OUTLINE OF THE PAPER

This article is therefore a study of the "pendency problem" outlined above - to try and understand the magnitude of the problem of pendency in the Indian judicial system, addressing it court by court and also at the different levels.

For the purposes of this article, the numbers as far as the High Courts are contained have been obtained from the "Court News" Publication of the Supreme Court of India, which has been updated up to September 2015. For the District and Magistrate courts, the numbers have been collected from the National Judicial Data Grid as of 18March, 2016.

Based on the numbers collected, this paper will first analyze High Courts in the next chapter and District Courts in the chapter after that to analyze the extent of the pendency problem, if at all. The measure, adopting the methodology of the Law Commission of India in its 245th Report, is to see how many more judges it would take to resolve the pending cases in a period of three years. While the Law Commission assessed how many judges would be needed keeping in mind a one year, two year and three year period, the analysis here is being restricted to a three year time frame only in the interests of space.

There is one other reason why this method of the Law Commission is to be preferred. As the Law Commission has noted, there is a lot inconsistency in the manner in which the data is maintained across High Courts and District courts in India. The categorization of cases and the manner in which they are enumerated has wide disparities across the board with different States and courts adopting different definitions of what a "case" is. This makes simple comparisons based on absolute number of cases difficult.

HIGH COURTS

As of March, 2016 India has 24 High Courts, with a sanctioned strength of 1,056 judges of which only 591 positions have been filled. As on 30.06.2015, District and Subordinate Courts had a sanctioned strength of 20,495 though as of 16.03.2015 only 15,708 of these were filled. The latest sanctioned strength figures for District Courts are not available so it is not clear how many vacancies are there are at the present moment.

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While 40,05,704 cases were pending in the High Courts as of 30.06.2015, 2,10,14,892 cases are pending in the district and magistrate courts as of 18 March, 2016. Though latest figures are not available for High Courts, even if we assume that the number of cases has increased by 10% since June 2015, the total number of cases pending in the High Courts and Subordinate Courts as of March 2016 is not likely to exceed 2.6 crores. By itself this figure does not tell us anything useful.

Some perspective is gained by examining the total number of cases filed and disposed in the High Courts and subordinate courts in India over a year. Between April 2014 and March 2015, as per the latest Court News publications, 18,24,799 cases were filed and 17,27,884 cases were disposed of by the High Courts. This suggests that the High Courts are unable to handle the burden of cases being filed and ended up adding one lakh more cases to the total number of pending cases at the end of the year. The total number of pending cases are more than double of the number of cases being filed and disposed in the High Courts.

As far as subordinate courts are concerned, between April 2014 and March 2015, as per the latest Court News publication 1,87,54,463 cases were filed but 1,91,15,969 cases were disposed of in that time period. When compared to the 2.1 crore cases pending, this suggests that relatively, subordinate courts have a lower ratio of pending cases to filed cases when compared to High Courts.

However, this also does not give us a full picture. For a more accurate assessment, this needs to be supplemented with a breakdown State by State, with respect to the number of judges in that State.

I examined the data for the quarter between June and September 2015 as available in the latest "Court News" publication for cases filed, disposed and pending in that quarter. I have compared them to the strength of the High Courts as it stood then. The data is summarized in the tables below.

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Based on the figures, High Courts can be classified into three:

• High Courts with no significant pendency problem, i.e., at or near present strength of judges, the pendency of cases can be cleared in three years: Chhattisgarh, Manipur, Meghalaya, Himachal Pradesh, Tripura and Sikkim

• High Courts with a pendency problem that can be resolved through the appointment of sanctioned strength of judges or a reasonable increase (less than 30% increase in sanctioned strength required): Karnataka, Madras, Patna, Jharkhand, Gujarat, Orissa, Gauhati, and Uttarakhand.

• High Courts with a severe pendency problem where a disproportionately large number of judges (more than 30% increase in sanctioned strength) are needed to clear pendency in three years: Allahabad, Bombay, Punjab and Haryana, Hyderabad, Rajasthan, Delhi, Calcutta and Kerala.

The difference between category b. and c. has been made as a rule of thumb and is not hard and fast. Even though Orissa and Uttarakhand require a little more than 30% increase in sanctioned strength, the absolute number of judges required is relatively smaller and hence have been put into category .

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Even though J&K requires only ten judges more than its sanctioned strength, it would amount to an expansion of the court to one and a half times its present size.

As Table 1 shows, the bulk of the pendency lies in the larger courts which would require enormous number of judges to be appointed beyond the sanctioned strength of the High Courts. A recent 25% increase in the sanctioned strength of the High Courts has not dramatically improved the number of judges in the High Courts. Rather, the inability of the collegium system of appointment to make these appointments in time has only meant that the overall number of vacancies has increased.

||  DISTRICT COURTS

Thanks to the National Judicial Data Grid, detailed information is available about the pendency of cases in the District Courts in India.

Table 4: Total number of cases pending in the Subordinate Courts as of 18.03.2016

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Table 5: Total number of judges, cases disposed, rate of disposal per judge and extrapolated disposal of case

While data is available about sanctioned strength of judges in each State, it is updated up to September 2015 and from a comparison of the data, it would seem that the sanctioned strength has increased since. Since there is no data available at present about sanctioned strength of District Court judges, this section will draw comparisons only with reference to increase in strength since each State can increase the sanctioned strength of District Court judges in that State at any time.

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As with the High Courts, it is possible to classify State Subordinate Courts also into three distinct categories based on what the increase in judges would need to be.

1. States where there isn't a significant pendency problem (%increase in judicial strength needed <20%): Sikkim, Chandigarh, Manipur, Telangana, Uttarakhand, Daman and Diu, Karnataka, Kerala and Andhra Pradesh

2. States where the pendency problem is significant but the appointment of a reasonable number of judges could resolve it within three years (% increase in judicial strength needed <40% but >20%): Meghalaya, Haryana, Punjab, Jammu & Kashmir, Madhya Pradesh, Tamil Nadu and Chhattisgarh.

3. States which have a significant pendency problem where the number of additional judges required to resolve it is disproportionate to existing judicial strength: Mizoram, West Bengal, Orissa, Bihar, Maharashtra, Rajasthan, Andaman & Nicobar, Gujarat, Delhi, Jharkhand, Himachal Pradesh, Uttar Pradesh, Goa, Tripura and Assam.

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|||.  ?CONCLUSION

The larger High Courts seem to have a considerable pendency problem - not just in absolute terms but even relative to the actual burden of cases filed and disposed by these High Courts. While some part of the problem can be solved by timely appointment of judges, filling up in the sanctioned strength in High Courts or marginally increasing the sanctioned strength in some cases, there are some High Courts where these measures are likely to prove inadequate or where the number of judges is too large to be managed in a High Court. A High Court may be constrained from expanding beyond a certain size by limitations like support staff, infrastructure, et al. Since High Courts sit in benches of one or two judges, there is every likelihood that increasing the number of judges will increase the uncertainty in law, reducing litigation to a pure gamble depending entirely on the judge to whom the matter has been allotted.

When it comes to the District Courts, although the numbers of judges can be increased without the concerns of creating chaos, there are concerns of adequate infrastructure and efficient management beyond a certain point. Like with the High Courts, the solution to tackle the pendency must go beyond the simple suggestion of appointing enough, or increasing the sanctioned strength of judges in the State.

The numbers suggest that the problem of pendency is not one that can be simply resolved by appointing more judges for a few reasons:

First, the burden of pendency is not the same across the board. Whereas pendency can be tackled in some states by simply filling all the vacancies, in other States it would require a manifold increase in the sanctioned strength of the judiciary.

Second, the appointment of more judges has to be accompanied by an increase in the infrastructure and support staff for such judges. Even if a State were to try and increase the sanctioned strength, it would have to spend significant resources in setting up the infrastructure for the judges.

Third, changes to procedural rules (such as limiting adjournments, making stricter timelines and imposition of costs for frivolous litigation) and alternate dispute resolution may be more cost effective mechanisms to reduce the number of cases coming to court. Greater use of information technology platforms could also assist and is currently underway through the E-courts programme.

Fourth, given the diversity of India, there may be no one size fits all solution. The reasons for the vast pendency in each state may be different and may require a tailored approach to solving the problem. Even as regards appointing more judges, there may be a need to identify exactly which districts and what level in the court hierarchy more judges are required.

Ideal solutions to resolving the "pendency problem" will vary between States. As the present data suggests that some states are worse than others in terms of judicial pendency, solutions need to be adopted on a multi-pronged front, on a war footing.

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Alok is a Senior Resident Fellow at Vidhi Centre for Legal Policy and leads their Judicial Reforms vertical