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In order to achieve a 100% case clearance rate, 2,279 more judges are required to be appointed to the lower courts, while 93 judges need to be appointed to the high courts, the Centre’s study states.
Part of the Economic Survey 2019, a chapter titled Ending Matsyanyaya: How To Ramp Up Capacity In The Lower Judiciary breaks down the facts and figures associated with pendency in Indian courts and provides suggestions as to how to overcome the issue that has come in the way of India’s ease of doing business. As stated in the report,
“Scenario analysis of efficiency gains needed to clear the backlog in five years suggest that the required productivity gains are ambitions, but achievable. Given the potential economic and social multipliers of a well-functioning legal system, this may well be the best investment India can make.”
The chapter makes specific reference to the pendency in the subordinate judiciary, where 87.54% of the total pending cases lie. The performance of the lower courts, in terms of the average age of cases, the number of days between hearings, and the average amount of time spent on the life cycle of cases, is analysed.
Pendency and Disposal
The study finds that the states of Odisha, Bihar, West Bengal, Uttar Pradesh and Gujarat have higher average pendency for both civil and criminal cases as compared to the national averages. On the other end of the spectrum, Punjab and Delhi have the least average pendency of cases.
In terms of disposal, it is found that 74.7 per cent of the civil cases and 86.5 per cent of the criminal cases are disposed within three years. Further, the states. Of Bihar, Odisha and West Bengal have higher average disposal time than the national average. Punjab and Delhi have the lowest average disposal time.
Case Clearance Rate
As defined in the chapter, Case Clearance Rate (CCR) is the ratio of the number of cases disposed of in a given year to the number of cases instituted in that year, expressed as a percentage. The cases disposed of need not have been filed in the same year, as some proportion of them will typically be backlog from previous years.
While the number of cases instituted each year in the lower courts has gone up, so has the number of disposals. However, the gap between institution and disposals allows cases to accumulate and results in an increase in pendency.
This, the report states, is because the clearance rate at most courts is below 100 per cent. The CCR had increased from 86.1 per cent in 2015 to 90.5 per cent in 2017, but then declined to 88.7 per cent in 2018.
How many judges are required to clear the backlog?
The chapter states that in order to rid the system of pendency, two things are required -a 100 per cent clearance rate, and the backlog already present in the system must be removed. This issue can be solved by simply appointing the requisite number of judges, the Centre believes.
In the subordinate judiciary, there are currently 17,891 judges compared to the sanctioned strength of 22,750. On average, a judge disposes 746 cases. The report comes to the conclusion that in order to reach 100 per cent CCR, the lower courts needed 2,279 additional judges, which within the sanctioned strength. However, in order to clear all the backlog in the next five years, 8,152 more judges are needed.
With regard to high courts, the chapter states,
“As of June 2017, High Court judges were working at 62 per cent of their sanctioned strength. With a case clearance rate of 88 per cent, each judge achieved an average disposal rate of 2,348 cases per year. The backlog of cases as on June, 2018 was 44.40 lakh. In order to reach 100 per cent CCR, they needed just 93 additional judges…To clear all backlogs in the next five years, the High Courts need a further 361 additional judges.”
Applying the same metrics to the Supreme Court – which is currently functioning at maximum capacity – only one more judge is required to achieve 100% CCR. To clear all the 56,000 odd cases in the next five years, an additional eight judges are required.
Allocation of judges
The report also considers the type of pending cases and their life cycle to determine how the additional judges can be made to resolve them.
It is noted that as on May 31, 2019, civil cases contribute a mere 28.38 per cent of total pendency, while criminal cases contribute about 71.62 per cent in the lower courts. The average CCR for all civil and criminal cases in lower courts for 2018 was 94.76 per cent and 87.41 per cent respectively. As stated in the report,
“The problem is especially acute for criminal original suits such as summons, warrants etc. These contribute 64 per cent of the total pendency as of May 31, 2019 with a clearance rate of 85.3 per cent. This implies that the additional judges need to specialize in these case types so as to speed up the disposal of such cases.”
Moving on to the life cycle of cases, it is stated that a lot of cases get stuck while at the stage of accessing the lower court records. Civil cases spend an average of 398 days in this stage and 369 days in the ʻhearing’ stage.
Awaiting lower court records also causes delays for criminal cases; courts spend 243 days, on average at this stage. The evidence and framing of charges stages consume 235 and 231 days, respectively.
State-wise clearance rate
The report notes that there are huge gaps between the demand for courts and the current capacity of the subordinate courts in many states.
“West Bengal, particularly for civil matters, spends much more time between hearings than any other state – approximately 301.4 days, as compared to the average (across 15 states) of 78.1 days for civil cases. The average for all cases is also the highest in West Bengal – 167.7 days between hearings, compared to the 15-state average of 55.1 days…
…Gujarat and Chhattisgarh have clearance rates of above 100 per cent in 2018. These states have achieved a level of efficiency where they are not only able to cope with fresh filings but can also address backlog from previous years. Madhya Pradesh, Assam and Tamil Nadu have impressively high clearance rates of close to 100 per cent…
…Bihar, Odisha, and West Bengal have low clearance rates of 55.58 per cent, 62.18 per cent, and 78.63 per cent respectively.”
The above figure reveals that there is some correlation between vacancy and pendency. This is especially true for Uttar Pradesh and Bihar. In these states, the focus should be on filling vacancies. However, note that West Bengal and Maharashtra have few vacancies but high pendency. This means that the national allocation of judges also has to be revisited.
It is further noted that although Gujarat and Madhya Pradesh have high pendency, they have also achieved CCR of 108.59 per cent and 99.94 per cent respectively. As noted,
“Perhaps the efficiency gains of these states should be studied and replicated.”
The suggestions for improvement in the justice delivery system include increasing the number of working days, the creation of a specialised Indian Courts and Tribunal Service (ICTS) to deal with the administrative aspects of the system, and the deployment of technology.
On the number of working days, it is highlighted,
“The main finding is that increasing the number of working days may improve productivity of the Supreme Court and in some High Courts, but is unlikely to significantly impact lower courts. Subordinate courts, which account for the bulk of pendency, seem to work almost as many days as government offices. After accounting for weekends and public holidays, it leaves 190 working days for the Supreme Court. In contrast, the average is 232 working days for High Courts and 244 days for Subordinate courts. There is a great deal of variation between states, and many courts make up for vacations by working on Saturdays.”
The role the ICTS could play in ameliorating the burden placed on administrative heads of courts, the report states, could be as follows:
Though admitting that clearing the pendency in Indian courts would be an”ambitious” task, the report concludes on a hopeful note:
“It is difficult to predict the exact improvement, but the purpose of this analysis is to show that the required efficiency gains for clearing the backlog are ambitious but achievable if combined with speeding up appointments.”
Though a number of factors are responsible for the seemingly insurmountable backlog, the study in the Economic Survey seems to believe that vacancies in the courts is the primary reason for the same. On the one hand, the Centre suggests that appointing more judges will alleviate the issue, while on the other hand, it has been accused of stalling appointments to the higher judiciary in the recent past.
Chief Justice of India Ranjan Gogoi recently wrote to Prime Minister Narendra Modi on similar lines, suggesting that the retirement age of High Court judges be raised to 65 years to address the issue of pendency.
While it offers interesting solutions in this study, it will be interesting to see how the Modi 2.0 government actually goes about tackling the long-standing issue of pendency.