It 93is a matter of concern that for several years now, India’s rank among nations in ‘Enforcement of Contracts’ in the World Bank’s Ease of Doing Business Report has been among the lowest of all nations. India’s ranking in the ‘Enforcement of Contracts’ metric was 186 out of 189 nations, and later revised to 178 in the 2015 Report and is currently 178 out of 189 nations according to the 2016 Report.¹ This ranking is attributable to the 1,420 days (approximately four years) it takes to resolve commercial disputes in the courts in New Delhi and Mumbai and that it costs about 39.1 per cent of the value of the claim to enforce it.² Though the World Bank’s methodology is limited to studying just the district courts of Mumbai and New Delhi and cannot possibly represent the full picture of the Indian judiciary, the numbers reflect what is perceived to be a widespread malaise in the Indian judiciary— delay.

The World Bank’s numbers reflect some of the wider ills that are perceived to afflict the Indian judicial system—delays, uncertainty, and high cost. While the World Bank’s report does not reflect other attributes of India’s judiciary, such as independence or fairness—where India’s judiciary may be doing better than most other nations—the fact remains that an independent and fair judiciary that is unable to deliver its verdicts in a reasonable time frame is failing its purpose.

What are the benefits of an efficient judicial system? Studies carried around the world seem to suggest that judicial efficiency has a bearing on the optimal functioning of the economy.³ Improved judicial efficiency, in addition to inflation, appears to also affect interest rates positively in that a more efficient judiciary that is better at upholding at rule of law seems to reduce the costs of lending and borrowing as well.⁴

94On the other hand, judicial inefficiency in terms of high pendency of cases and large backlogs has been blamed for reducing investment and employment in Brazil by 10 and 9 per cent respectively.⁵

This is by no means to suggest that efficiency is the first or even the most important virtue of a judicial system. Independence, fairness, and certainty are just as, if not more, important to the working of a judicial system. However, the absence of efficiency tends to deter litigants from approaching the judicial system for resolution of their disputes. Popular culture and anecdotal evidence seem to suggest that this is happening in India. Whatever its other merits, a judicial system that is unable to deliver verdicts in a timely and cost-effective manner is unlikely to inspire confidence in litigants and users. Even apart from litigants who approach the court for resolution of disputes, delays in criminal trials are also responsible for widespread violation of civil liberties as under-trial prisoners and accused are effectively punished with imprisonment without having their day in court.

This chapter is therefore an analysis of the nature of the problems in the functioning of the Indian judicial system preventing it from disposing of cases efficiently and without too much of a delay.

This section has already outlined the broad literature available on judicial efficiency across the world, what the impact of more efficient courts is, and how to measure it. The next section will discuss the definitions of some of the terms being used. This is necessary to keep the problem—delayed cases—in sight and analyse it in the proper perspective. The section that follows looks at disposal of cases in select High Courts and district courts, based on data collected by DAKSH on the time taken to dispose of cases and the number of hearings that they usually entail. The fourth section will be a brief analysis of the numbers that emerge from the data collected by DAKSH and accessed for the purposes of the present chapter.

This chapter by no means claims to be an exhaustive exploration of all the problems faced by the Indian judicial system or provide answers to all the problems pointed out here. The scope of this paper is not to try and assess what should be an ideal model or set a benchmark for how the Indian judicial system should function, but to compare speeds of disposal between courts in India. This is to provide a comparative perspective across courts in an effort to identify what reforms are needed and how they should be implemented.

Definition of Key Terms

The terms ‘arrears’, ‘pendency’, ‘delay’, and ‘backlog’ require some conceptual clarification before I proceed. These words are sometimes used interchangeably and confusingly, resulting in misidentification of the problem. For instance, the data point that ‘three crore cases are pending’ is one that is often presented in the public domain, sometimes as a matter of fact and sometimes as a matter of concern.⁶ As per the National Judicial Data Grid (NJDG), the actual figure of total pending cases in the trial courts is 2,05,75,852. However, even this figure is not only non-illuminating, but is also misleading in many ways. What it does not reveal is that this figure has to be seen in the context of 15,562 judges in the trial courts,⁷ the number of cases being filed (1,79,73,163) and disposed of (1,71,95,146) every year⁸ and the time taken to dispose of these cases. It is futile to therefore speak of ‘pendency’ alone in the absence of such nuances.

Likewise, there does not seem to be universal acceptance on what constitutes ‘arrears’ or ‘backlog’ either. For instance, the Supreme Court classifies 95cases that were pending for more than one year as ‘arrears’ in the Court News publication.⁹ Yet, in the Chief Justices conference held in 2009, the term ‘arrears’ is used synonymously with the term ‘pendency’ to indicate all cases that are pending at any given moment.¹⁰

One attempt to set these terms straight has been made by the Law Commission of India in its 245th Report, Arrears and Backlog: Creating Additional Judicial (Wo)manpower.¹¹ Here, the Law Commission defines the terms ‘arrears’, ‘backlog’, ‘delay’, and ‘pendency’ as follows:

a. Pendency: All cases instituted but not disposed of, regardless of when the case was instituted.

b. Delay: A case that has been in the Court/judicial system for longer than the normal time that it should take for a case of that type to be disposed of.

c. Arrears: Some delayed cases might be in the system for longer than the normal time, for valid reasons. Those cases that show unwarranted delay will be referred to as arrears.

d. Backlog: When the institution of new cases in any given time period is higher than the disposal of cases in that time period, the difference between institution and disposal is the backlog. This figure represents the accumulation of cases in the system due to the system’s inability to dispose of as many cases as are being filed.¹²

‘Pendency’ therefore consists of the universal set of cases which have been filed and not been disposed of, ‘backlog’ refers to the difference between filing and disposal of cases in a given time period, ‘delay’ being a subset of ‘pendency’ where a case has taken longer than the ‘normal time’ that it should take for disposal of such a case, and ‘arrears’ being a further subset of ‘delay’ where the case has taken a longer time and no ‘valid reasons’ explain the same.

If it were to be represented as a Venn diagram, it would be as shown in Figure 1.

FIGURE 1. Representation of ‘Pendency’, ‘Delay’, and ‘Arrears’

Note: Diagram not to scale.

While these definitions do bring in some much-needed clarity to the topic at hand, there is still a certain degree of vagueness in these definitions which makes them difficult to use analytically. For instance, the term ‘normal time’ does not refer to a fixed time period by which a case should be disposed of, but is something that the Law Commission recommends should be determined through ‘case-specific time tables’¹³ which it leaves up to High Courts to determine keeping in mind local needs. While this approach may be justified to assess individual judicial performance of district court judges, the absence of a standard time table does not really help us identify problems in the High Courts or in the Supreme Court. Even within the district courts, there is a danger that the benchmark may be set too low to really make a meaningful difference to the problem of delay and arrears. Nevertheless, the task of preparing case-specific time tables is one which can be undertaken to ensure that guidelines are set and cases are disposed of within said time frames.

96Quite apart from this, the Law Commission also does not go into the ‘valid reasons’ which may be why a case is an ‘arrears’ one instead of being a ‘delayed’ one. Be that as it may, for the purposes of this chapter, the terms ‘pendency’, ‘arrears’, ‘backlog’, and ‘delay’ are used hereinafter in the same sense as used by the Law Commission of India, with the above caveats.

Measures of Judicial Efficiency

There are multiple ways in which judicial efficiency of the judiciary can be measured—whether in terms of the number of days it takes to dispose of a certain kind of case,¹⁴ or in terms of the ratio of filing to disposal of cases.¹⁵ Another possible measure of efficiency could be the use of judicial time, that is, the amount of time taken to dispose of a given case. The use of judicial time could be measured through the time taken for each hearing in a given case to see whether it took five minutes or a whole day to hear the case. However, at present, in the absence of detailed records being maintained on how long it takes for a case to be heard, or some empirical method of collecting this data, it will not be possible to assess in the Indian context.

Each of the above-mentioned measures has its own methodology and use depending on the context in which judicial efficiency is being measured. In the Indian context, while any of these measures would be useful to assess the functioning of the judiciary, this chapter will focus on the number of days it takes to dispose of cases and the ratio to filing and disposal of cases.

The data in the NJDG is categorised on the basis of the time periods for which case has been pending. This is presented in Table 1.

TABLE 1. Cases Pending in District and Subordinate Courts in NJDG Database

Source: NJDG database.

Note: Figures are as of 8 December 2015.

The uneven periods for which the cases have been split up makes it difficult to arrive at a median figure for delay. While the manner in which the data has been presented is no doubt problematic and unhelpful for a closer analysis, nevertheless it can be safely said that cases that have been pending for more than five years are definitely ‘delayed’, even if they do not constitute the full set of all cases that are ‘delayed’. If we assume that cases that have been pending for less than two years only constitute ‘pendency’ without necessarily being delayed,¹⁶ from the NJDG figures, we can say that somewhere between 28.46 per cent and 58.25 per cent are ‘delayed’ of which about up to 29.79 per cent could be for valid reasons and the rest ‘arrears’. What these valid reasons could be, the Law Commission has not gone into in its report, and in the absence of applicable time frames, it is difficult to say for sure.

However, as Table 2 shows, when one looks at cases which have been disposed since 2000, from the data made available by DAKSH, we find that of 3,43,105 cases disposed of by 331 district and subordinate courts that DAKSH has obtained data from, 2,80,521 or 81.8 per cent of cases have taken more than five years to dispose of and were therefore definitely delayed. Of these, 1,94,814 or nearly 9757 per cent of cases in total have taken more than 10 years to dispose of.

TABLE 2. Time Taken by District and Subordinate Courts in DAKSH Database to Dispose of Cases

Source: DAKSH database.

Note: Figures are as of 15 February 2016.

While the sizes of the datasets are no doubt different, the vast discrepancy in the numbers available on the NJDG and the DAKSH dataset for cases suggests that the NJDG numbers may in fact be painting a rosier picture of the delays in cases than the actual position. It also highlights the need for more granular data from the NJDG to be able to effectively analyse the true position of delay and pendency.

At present, while the NJDG gives broad figures about the number of pending cases, sorted into uneven yearly buckets, we do not have specific data on how long it actually takes to get a case disposed of at various levels in the Indian judicial system. At most, it is possible to say how long it would take to dispose of pending cases without the burden of additional cases and at the same number of judges. Obviously this is not a very realistic assumption to make while proposing solutions, and we must therefore examine data more minutely where possible.

To this end, I have examined the data collected by DAKSH on the number of cases that have been filed and disposed, how many hearings it took to dispose of the cases, and how long it took to dispose of the cases, at the High Court level.

Analysis of Judicial Efficiency

In assessing judicial efficiency, this section looks at certain case types in the High Courts for which DAKSH has been able to collect data and for those where such categories are known. While DAKSH’s data does not cover every case that has been filed and disposed of, by examining details of cases that have been listed for hearing and details of such hearings we can gather many valuable insights on the functioning of India’s High Courts.

Hearings Taken to Dispose of a Case

From DAKSH’s data, it is possible to see both how long it takes to dispose of cases and how many days have elapsed between hearings. Of the High Courts for which DAKSH had data both on days taken to dispose of cases and average number of days between when each case was heard, I was able to assess how many hearings it took to dispose of the cases. This analysis is presented in Table 3.

TABLE 3. Average Number of Hearings Taken to Dispose of Cases

Source: DAKSH database.

Note: Figures are as of 15 February 2016.

98From the above, there seems to be no correlation between the time period between hearings and time taken to dispose of cases. Indeed, more hearings only suggest greater inefficiency as the Court is unable to conclude the case, adding to the expense of parties.

Time Taken for Disposal in the High Court

Table 4 presents data for four High Courts where sufficient data was available to show the time taken to dispose of the cases. Breaking down the numbers for cases from the selected High Courts, sorted into five-year buckets, we find that the vast majority of cases (86.82 per cent) took 10–15 years to decide.

TABLE 4. Time Taken to Dispose of Cases Sorted in Five-year Buckets

Source: DAKSH database.

Note: Figures are as of 15 February 2016.

Compared to the district courts, the High Courts seem to be taking longer, on average, to dispose of cases. From the data made available by DAKSH, an even greater percentage of High Court cases have taken 10–15 years to dispose of, giving some indication of the systemic delays. While this may not necessarily be the details of all cases decided by courts in the last few years, nevertheless, it gives us some indication of the extent of delays being faced in disposing cases.

Time Taken for Disposal of Different Types of Cases

When we review the average time taken to dispose of various types of cases, we find that there are vast differences in the time taken to dispose of cases within a High Court as well. Data was obtained from DAKSH on the time taken to dispose of the following types of cases: Civil Revision Petitions, Criminal Revision Petitions, Civil Writ Petitions, Criminal Writ Petitions, Civil Appeals, and Criminal Appeals. Even within the same High Court, there seem to be vast differences in the time taken to dispose of certain case types, as Table 5 shows.

TABLE 5. Average Time Taken to Dispose of Certain Case Types¹⁷

Source: DAKSH database.

Note: Figures are as of 15 February 2016.

99Looking at the number of hearings and the number of days it takes to dispose of a case, it is clear that some categories of cases seem to move faster than the others in the High Courts. If we break down the numbers just by case type, the pattern across the selected High Courts emerges as set out in Table 6.

TABLE 6. Average Time Taken to Dispose of Certain Types of Cases across High Courts

Source: DAKSH database.

Note: Figures are as of 15 February 2016.

Generally, writ petitions and revision petitions, civil and criminal, seem to take much less time to dispose of than appeals by a fairly wide margin.

Possible Causes of Judicial Inefficiency and Possible Solutions

As pointed out earlier, it is not possible to identify every single cause for delay in disposal of cases at the trial court and the High Court level within the scope of this paper. It is also not easy to estimate what should be the desirable time frame within which a given case should be disposed of, since this requires an in-depth study of the reasonable time frame within which delayed cases should also be disposed of, taking into account the capacity of the judges and the judicial system to be able to do so.

The absence of a time frame to dispose of a case is also seen in the widely divergent time periods between hearings in different categories of cases across the High Courts, even within the same High Court. While Civil Revision Petitions are decided in 77 days on an average in the High Court of Bombay, Civil Appeals take 2,303 days to be decided on average. Even across High Courts, there are wide variances in the average time taken to dispose of certain categories of cases as discussed above. The procedures for these cases are not vastly different and do not require taking on board evidence as in a trial, though the scope of the revisional jurisdiction of the High Court is much narrower than the appellate jurisdiction.¹⁸ The actual number of steps required to decide a Civil Revision Petition by the High Court are not fewer than those needed to decided Civil or even Criminal Appeals. Yet, we find that Civil and Criminal Appeals seem to take much longer and involve more hearings to decide than Civil Revision Petitions.

The number of hearings and the time period taken to dispose of cases across the system suggest that there is a serious problem of case management in procedure law in India. One possible explanation for the numbers discussed above is that 100adjournments are granted too easily and freely, and in the absence of a fixed time table to dispose of cases leads to delays in disposing of cases.

The delays in hearing appeals and writ petitions in the High Courts, cases which have fewer procedural requirements, are a matter of concern since there is little scope for changes in the procedure to improve the speed of disposal. One suggestion that may be made is the ‘case management hearing’ which has been introduced in the procedure of commercial disputes.¹⁹ A case management hearing, held after pleadings are completed between the parties, could clearly lay out a timeline for the disposal of a case and ensure adherence to this. In addition, the timelines set in the case management hearing must be accompanied by sanctions which may be imposed by the court against parties who fail to adhere to the deadlines.

There are of course other explanations for delays in disposal of cases and lack of efficiency, which cannot be fixed by legislative changes. A large factor could merely be lack of judges against the sanctioned strength of the High Court in question. At present, nearly 40 per cent of seats in the High Courts are vacant and vacancy has never been below 20 per cent in the last decade.²⁰

There is of course no one magic bullet solution which can resolve the long-standing problem of backlog and delayed cases in the Indian judicial system. The magnitude of the problem requires a multi-pronged approach which, among others, should include efforts to improve the efficiency of courts in disposing of cases within a short time frame.

Notes

1. World Bank. 2016. ‘Doing Business 2016: Measuring Regulatory Quality and Efficiency’, 13th Edn., available online at http://www.doingbusiness.org/~/media/GIAWB/Doing%20Business/Documents/Annual-Reports/English/DB16-Full-Report.pdf (accessed on 7 January 2016).

2. World Bank. 2016. ‘Ease of Doing Business in India’, available online at http://www.doingbusiness.org/data/exploreeconomies/india/#enforcing-contracts (accessed on 7 January 2016).

3. Robert M. Sherwood. 1994. ‘Judicial Systems and Economic Performance’, Quarterly Review of Economics & Finance, 34(1): 101–116.

4. Luc Laeven and Giovanni Majnoni. 2003. ‘Does Judicial Efficiency Lower the Cost of Credit?’, World Bank, Policy Research Working Papers, available online at http://elibrary.worldbank.org/action/showCitFormats?doi=10.1596%2F1813-9450-3159 (accessed on 10 February 2016).

5. Armando Castelar Pinheiro. 1998. ‘The Hidden Costs of Judicial Inefficiency: General Concepts and Estimates for Brazil’, Address at the seminar ‘Reformuas Judiciales en Amnerica Latina: Avances y Obstaculos para el Nuevo Siglo’, Confederacion Excelencia en la Justicia, Santafe de Bogota, Colombia July 29 cited in Maria Dakolias. 1999. ‘Court Performance around the World: A Comparative Perspective’, World Bank Technical Paper No. 430: 1.

6. See for instance, Indian Express. 2015. ‘Nearly Three Crore Cases Pending, CJI Says Trial to End within 5 Years’, Indian Express, 5 April, available online at http://indianexpress.com/article/india/india-others/nearly-three-crore-cases-pending-cji-says-trial-to-end-within-5-years/ (accessed on 7 January 2016).

7. Data from the NJDG, available online at http://164.100.78.168/njdg_public/main.php (accessed on 7 January 2016).

8. Supreme Court of India. 2013. ‘Court News’, available online at http://sci.nic.in/courtnews.htm (accessed on 7 January 2016).

9. Supreme Court of India. 2012. ‘Court News’, 7(2), Apr–Jun 2012, available online at http://supremecourtofindia.nic.in/courtnews/2012_issue_2.pdf (accessed on 7 January 2016).

10. Supreme Court of India. 2009. ‘Agenda for Conference of Chief Justices, 2009’, available online at http://supremecourtofindia.nic.in/cjiconference/agenda2009.pdf (accessed on 2 March 2016).

11. Law Commission of India. 2014. ‘Arrears and Backlog: Creating Additional Judicial (wo)manpower’, Report No. 245, available online at http://lawcommissionofindia.nic.in/reports/Report245.pdf (accessed on 7 January 2016).

12. Law Commission, ‘Arrears and Backlog’, p. 3.

13. Law Commission, ‘Arrears and Backlog’, p. 7.

14. 101Marina M. Bellani. 2014. ‘Judicial Efficiency and Foreign Direct Investments: Evidence from OECD Countries’. Paper presented at 5th International Conference on ‘Economics of Global Interactions: New Perspectives on Trade, Factor Mobility and Development’, Bari, Italy, 8–9 September, available online at http://www.etsg.org/ETSG2014/Papers/358.pdf (accessed on 7 January 2015).

15. Dakolias, ‘Court Performance around the World’.

16. Assuming two years to be a reasonable time frame to dispose of a case by simply adding up the timelines contained in the Code of Civil Procedure, 1908 (CPC) and the Code of Criminal Procedure, 1973 (CrPC).

17. Numbers for Civil Revision Petition and Criminal Appeals from the High Court of Orissa were also provided. However, they have not been included in the present analysis as they seem to be complete outliers as a result of very few cases taking more than 20 years to dispose.

18. Under S. 115 CPC, the revisional jurisdiction of a High Court is limited to such cases where the subordinate court has exercised jurisdiction where it had none, refused to exercise jurisdiction when it should have, or committed an irregularity or illegality in the manner in which it exercised its jurisdiction, and no further appeal is allowed from such order of the subordinate court.

19. See, new Or. XV-A CPC, introduced in the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015.

20. Alok Prasanna Kumar. 2015. ‘Vacant Posts Remain Collegium System’s Biggest Challenge’, livemint.com, 20 October, available online at http://www.livemint.com/Politics/FZKTZdKUtZRaEcg2msir1J/Vacant-posts-remain-collegium-systems-biggest-challenge.html (accessed on 7 January 2016).