Beyond rhetoric

The problem of pendency of cases in the judicial system must be examined on the basis of data and not anecdotal evidence.

A typical scene, outside the High Court in Hyderabad. A file picture

BUT for the Chief Justice of India’s outburst against the government, ostensibly due to the delay in the process for appointment of judges, the biennial Chief Justices and Chief Ministers Conference, 2016, would have gone unnoticed and mostly unremarked beyond a closed circle of the legal fraternity. What it has instead done is to bring back the focus on the Indian justice delivery system’s perennial failings—delays in the disposal of cases and high pendency of cases.

The words “delay” and “pendency” have been used rather loosely and lazily by policymakers and academics, which has left the nature of the problem undefined and poorly diagnosed. An absolute number of cases pending in the Indian judicial system—3.5 crore cases, or some similar number—is trotted out by way of complete explanation without trying to put it in proper context. Likewise, when it comes to delay, everyone has a story akin to Dickens’ Jarndyce v Jarndyce from Bleak House but few offer data or a statistical analysis of the problem.

When one digs through available data, one finds a much more complex picture of the working of the judiciary that is beset by myriad problems that require different kinds of interventions by the various actors. In this piece, I discuss the vital statistics of the Indian judiciary in the context of pendency and delay with the hope that the discussion on how to improve the functioning of the Indian judicial system will be more informed and data-driven, rather than emotional and anecdotal.

Pendency

The figure often cited—3.5 crore cases pending in the system—reveals nothing about the actual pendency problem in India. It may not even be an accurate number. Remarkably, the figure “3.5 crore” has been cited for nearly two decades now as the total number of pending cases. It has been cited by lawyers, academics, judges and policymakers with absolutely no reference to the source or veracity of this figure. The fact that this completely incorrect statistic has been cited without even a little preliminary research or statistical study shows why the problem of pendency will always be misdiagnosed.

One source to ascertain the correct total number of cases is the Court News publication of the Supreme Court of India, published quarterly. It contains details of all the cases pending in the Supreme Court, the High Courts and the district courts. In the latest issue of Court News we find there are 59,910 cases pending in the Supreme Court, 40,05,704 in the High Courts and 2,71,56,020 in the lower courts, a total of 3.1 crore cases—smaller than the “3.5 crore pending cases” figure.

These figures must be placed in the context of the overall number of cases that are disposed of in the country’s courts in a given year. The number of filings have been steadily increasing over the years and as per the latest figures available from Court News for a 12-month period, the Supreme Court disposed of 87,846 cases, the High Courts 16,87,743 cases and the district courts 1,86,05,800 cases. It has to be kept in mind that the overall “pendency” data do not disaggregate the numbers based on when the cases were filed and do not therefore present the true picture of the actual pendency of cases. In fact, according to Court News data, all three levels of the judiciary actually brought down the number of pending cases in the last year; substantially in the case of the Supreme Court but marginally in the case of High Courts and district courts.

This is not to say that there is no pendency problem. Rather, it is to say that the problem must be understood in its proper perspective. If we define the problem as one where the number of cases pending per judge is vast, making it difficult for the judge to do justice to the case (pun intended), then we have to examine how many cases are pending per judge at different levels in India (see Table 1). These numbers must also be seen in the context of how many cases are disposed of per judge in a given year.

While this would also not be the complete picture, it gives us more clarity on the pendency problem, in comparison with the number of cases filed. From these numbers, it is evident that, whether in terms of the absolute number of cases pending per judge, or in relation to the number of cases filed per judge, the High Courts suffer from the worst pendency problem among the three layers of the Indian judiciary. Even among the High Courts, there are significant differences in the burden of pendency. If one looks only at the ratio of cases pending per judge to the number of cases disposed of in a year per judge, the highest numbers are found in the High Courts (as given in Table 2).

Though there are other High Courts with a higher absolute number of cases pending, the five High Courts that feature in Table 2 are those where the pending cases are extremely high in relation to the disposal over a year. In simpler terms, the ratio indicates the number of years these High Courts will need to reduce their pending cases to zero if no further cases are filed in that time. While these are just the High Courts with the worst problem, the overall situation with High Courts when it comes to the ratio of pending cases to the disposal rate, when compared with the Supreme Court and the district courts, is also troubling.

There is another reason not to give credence to an absolute number of cases pending—there is no universally accepted definition of what is a case across courts. This problem was highlighted by the Law Commission of India in its 245th Report titled “Arrears and Backlog: Creating Additional Judicial (wo)manpower” when it sought to try and assess what would be a realistic number of judges needed at the district court level in India. What the Law Commission found was that each State, and even each district, seemed to have different norms for what counts as a “case”. In some instances only the main proceedings were counted; in others, even applications and interim proceedings within a case were counted as a separate case. The absence of a single, unified definition of what is a “case” must make us treat any national number of “pendency” with circumspection and look to address the problem at the level of each State.

Delays

As with the problem of pendency, the discussion on delays has proceeded with little thought for the actual numbers or an overall accurate picture of how long a case takes to get disposed of in the system. Most coverage of the judicial system in India pivots on an anecdote or two about a long-standing rent, property or criminal matter, which took the better part of a couple of decades to be decided, or worse, is still pending. An egregious example of such a delayed case can be seen in the Supreme Court’s judgment in DDA vs Anant Raj Agencies where the proceedings culminated after a scarcely believable 41-year-battle in court, having gone through every level of the judicial system between 1975 and 2016.

Yet, examples such as these, egregious as they are, cannot form the complete basis to understand what actually ails the judicial system. To do this, one must examine the data on how long cases have actually been pending in the judicial system. In the context of district courts, the data for this are present on the National Judicial Data Grid (NJDG), which gives a break-down of how long cases have been pending in the system. The NJDG was made public in September, 2015, as part of the e-Courts project, connecting all district courts which have been computerised on to one platform where cases can be easily monitored. While not all district courts are on the system at the moment, details of over two crore pending cases are currently available, enough to give us a good idea of what the picture is likely to be over how long cases have been pending in courts (see Table 3).

As of May 4, 2016, 27.81 per cent of all cases were pending for more than five years, with 10.28 per cent pending for more than 10 years. If any effort has to be made at addressing the problem of delays, it is these cases that deserve immediate focus to ensure that no case is pending in a given court for more than five years. Once that is ensured, efforts can be made to reduce the number of cases pending for more than two years, and so on. Given the scale of the problem it may be impossible to ensure no case is pending for more than five years, but if the overall percentage is brought down to a minuscule or negligible figure, significant progress will be made.

As with “pendency”, the problem of delays is not uniform. Uttar Pradesh, Gujarat, Maharashtra and Bihar, account for more than 70 per cent of the cases pending for more than 10 years, even though they account for only 50 per cent of all pending cases (see Table 4). While it is only to be expected that the States that have the highest number of pending cases will also have the highest number of cases pending for more than 10 years, it is interesting to note that in these States (save for Maharashtra) the percentage of delayed cases is greater than the percentage of pending cases nationally.

West Bengal, Gujarat, Odisha, Bihar, Jammu and Kashmir and Uttar Pradesh have the highest percentage of cases pending for more than five years. In these States, more than one in three cases have been pending for more than five years. Tables 4 and 5 show the problem of delay is most acute in West Bengal, Gujarat, Odisha, Bihar, Jammu and Kashmir, Maharashtra and Uttar Pradesh. Any effort at tackling the problem of delays in the judicial system must therefore lay emphasis on reducing the number of delayed cases in these States (see Table 5).

Conclusions

There is still much by way of nuance that can be teased out from the numbers as one goes deeper. The point, however, remains that there is no simple diagnosis and no silver bullet to solve the problem. An increase in the overall strength of the judiciary, as often suggested and sought by the CJI, is a meaningless and futile exercise if the appointment mechanisms are not robust enough to ensure that these new positions are filled in time with competent men and women. The quality of legal education and the Bar has a large bearing on the quality of judges who are ultimately selected to fill these posts. Even if all the posts are filled, there is also the further requirement of ensuring adequate support staff and infrastructure for the judges to be able to function properly. Even then, all of this will ultimately prove to be futile if the procedural laws and rules are not updated, keeping in mind modern trends in judicial process.

The problems of the Indian judiciary, therefore, require both the State and Central governments, along with the High Courts and the Supreme Court, to work in coordination and concert. Instead of broadly trying to address “delay” or “pendency” in the abstract, what is needed is focussed attention to the many aspects of the Indian judiciary that require repair. At the district court level, each State will require a solution tailored to its specific needs depending on the exact nature of the problem being faced by it. This requires the High Court and the State government to work in close coordination to properly identify and remedy this problem. The Central government and the Supreme Court may at best play a supervisory and advisory role in this matter but in assessing whether more judges are needed, and ensuring that existing vacancies are filled up, adequate infrastructure is built and quality judges appointed, it is the duty of the High Courts and the State governments to tackle the problem.

At the level of the High Courts themselves, the immediate pressing problem is one of a severe shortage of personnel. The latest figures from the Department of Justice show that as of April 1, 2016, 462 posts or 43 per cent of the posts of High Court judges are vacant. Even if the Central government clears the 169 pending appointments, it still leaves nearly 30 per cent of the posts vacant. As the numbers have shown, the pendency problem (and quite likely, the delay problem) is much higher in the High Courts than in the district courts and requires immediate action. For better or worse, the collegium system is here to stay, and it is incumbent on the Supreme Court and the Central government to ensure that it functions at its efficient best.

The Indian judiciary, one of the largest in the world, bestowed with wide-ranging powers of judicial review and rigidly protected from executive interference in the Constitution, cannot be seen to succumb under the weight of its responsibility.

Alok Prasanna Kumar is a Senior Resident Fellow at the Vidhi Centre for Legal Policy. The views expressed in this piece are entirely his own.