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JAMIA MILLIA ISLAMIA

(FACULTY OF LAW)

2018-19

JUDGING AND COURT MANAGEMENT

Topic-Judges to Population ratio-an analysis

Submitted To – DR. GHULAM YAZDANI

Submitted By – Rajiv Sharma (Roll No. 21, Sec-A)

BA. LLB. (Hons.) 5th Year

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Acknowledgment

It is my imperative duty to thank the following people for the successful

completion of my Conflict of Laws Project Report,

Dr. Ghulam Yazdani for the clarity he brings into teaching thus
enabling us to have a better understanding of his subject. I also feel
obliged to thank him for providing me with the opportunity to
work on this project.

My resourceful classmates, who assisted me in my research and

thus helped me in completing this project on time.

The very cooperative and friendly staff members in the Central and
Law Library who were instrumental in helping me find the
necessary books without wasting much time.
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List of Cases

 All India Judges’ Association v. Union of India, AIR 1992 SC 165

 All India Judges’ Association v. Union of India, AIR 2002 SC

1752

 Imtiyaz Ahmed v. State of UP & others (2012) 6 SC 688

 Malik Mazhar Sultan v. U.P. Public Service Commission, (2008)

17 SCC 703
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ABBREVIATIONS

& And

ADR Alternative Dispute Resolution

AIR All India Reporter

CJI Chief Justice of India

CPC The Code of Civil Procedure

CrPC The Code of Criminal Procedure

FTC Fast Track Courts

ILJ Indian Law Journal

IPC Indian Penal Code

JIA Judicial Impact Assessment

LCI Law Commission of India

LSA Legal Services Authority

NHRC National Human Rights Commission

NJA National Judicial Academy

PC Privy Council

PIL Public Interest Litigation

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PP Public Prosecutor

SC Supreme Court

SCJ Supreme Court Journal

SCR Supreme Court Reports

SHO Senior House Officer

UDHR Universal Declaration on Human Rights

UK United Kingdom

USA United States of America

VC Video Conferencing

Vol. Volume
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Contents

1. Introduction………………………………………………………7
2. Historical Perspective……………………………………………11
3. Methods for calculating judge population ratio………………….19
i) Judge to population ratio and judge to filling ratio……………………………..19
ii) Judge to institution ratio………………………………………………………...19
iii) Ideal case load method………………………………………………………….20
iv) Time based method……………………………………………………………...22
v) Rate of disposal method………………………………………………………...23
vi) Unit based system model………………………………………………………..26
4. Vacancies in Judicial Services…………………………………...28
5. Judge population ration in India and other relevant countries…...36
6. Backlog of cases……………………………………………........45
7. Observations and conclusion…………………………………….57
8. Bibliography……………………………………………………..70
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PART – 1

INTRODUCTION

Timely disposal of cases is essential for maintaining the rule of law and providing access to

justice which is a guaranteed fundamental right. Denial of ‘timely justice’ amounts to denial of

‘justice’ itself. Two are integral to each other. However, as the present status of our judicial

system indicates, the judicial system is unable to deliver timely justice because of huge backlog

of cases for which the current judge strength is completely inadequate. Further, in addition to the

already backlogged cases, the system is not being able to keep pace with the new cases being

instituted, and is not being able to dispose of a comparable number of cases. The already severe

problem of backlogs is, therefore, getting exacerbated by the day, leading to a dilution of the

Constitutional guarantee of access to timely justice and erosion of the rule of law.

The problem of delays is not a new one it is as old as the law itself. The problem has assumed

such a gigantic proportion that unless it is solved speedily and effectively, it will in the near

future crush completely the whole edifice of our judicial system 1. The Indian judiciary plays a

significant role in protecting the rights of the people and it has tried to give certain rights like

right to speedy trial, right to fair trial etc. a constitutional status by including all these rights

within the purview of Article 21 of our Constitution. The judiciary in India has played a dynamic

role in the dispensation of justice by providing fair and just trial to all its citizens.

1
C.L. Aggarwal,“Laws Delay and Acccumlation of arrears in the High Courts.” Vol. 7(1) 41 JBCI (1978)
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There have been Chief Justices in India who have given us rhetorical speeches and there are who

have been silent but for the person holding the apex position to leap forward beyond the

designated shackles of the aura of that office and to almost shed tears in front of the PM of India

points out the extremes of the Judicial inefficiency we have attained and how much urgently we

need to revisit the whole foundation of Judiciary to know both in the parameters of quantity and

quality, the situation of judges in the third and in the light of judicial activism perhaps most

reliable voice of all of us.

From time to time various reports have suggested and recommended various aspects of judges

strength which should be there in our country to deal with the huge backlog of our judicial

system .The Law Commission in 1987 had recommended 40,000 judges in the country to tide

over the problem of pendency of that time. Its report had said that there were only 10 judges to a

million populations when there should be at least 50 judges per 10 lakh population.

With India’s population being pegged at 1.2 billion as of May 2016, applying this benchmark,

India should have approximately 60,000 judges. In 2016, according to Court News, a publication

of the Supreme Court of India, there were 16,119 judges in the subordinate judiciary, 598 in high

courts and 26 in the Supreme Court.

As the pivotal issue for the report is to suggest some basis for computing as to how many

additional judges are required to process cases in ‘timely’ manner to large extent, answer to this

question depends on how one defines ‘timeliness’ (and, therefore, how many cases are delayed).

As already mentioned in the foregoing paragraphs, it may be emphasized at the cost of sounding

repetitive that without arriving at some such definition, it is difficult to suggest any appropriate
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method for planning and computing additional resources required to contain the delay. A

significant portion of the report right at the start, after critical examination of various approaches

to defining terms like ‘arrears’, ‘pendency’ and ‘delay’ as floating around in the literature on the

subject incorporates Commission’s own reflections. These reflections, while may provide little

more clarity to assigning meaning to above referred terms which have been generally understood

so ambiguously, the Commission still views that it may not be possible to devise any perfectly

scientific and uniform definition of these concepts. Acknowledging such definitional limitation

and of inadequacy of data received, present report culminates in making some suggestions on the

additional resources required to dispose of the current pendency, and to prevent the backlog in

future.

It should be noted that the Higher Judicial Service is disposing of fewer cases than are being

instituted. As such, it is adding to the backlog of cases in the system. On the other hand, in the

Subordinate Judicial Service, the disposal rate is higher than the institution, implying that the

backlog is being reduced. It should be pointed out here that the backlog creation analysis does

not indicate whether the same cases that were filed in a given year were disposed of in that year.

Rather, it takes a systemic perspective and looks at how many new cases are coming in, in

relation to how many cases are going out. A low backlog creation rate, therefore, indicates that

the system as a whole is incapable of dealing with the recurring annual demand for Judicial

Services, and is, therefore, in need of additional resources.

There have been Chief Justices in India who have given us rhetorical speeches and there are who

have been silent but for the person holding the apex position to leap forward beyond the

designated shackles of the aura of that office and to almost shed tears in front of the PM of India
 P a g e | 10

points out the extremes of the Judicial inefficiency we have attained and how much urgently we

need to revisit the whole foundation of Judiciary to know both in the parameters of quantity and

quality, the situation of judges in the third and in the light of judicial activism perhaps most

reliable voice of all of us.

The Law Commission in its 120th Report recommended that the strength of judges per one

million population may be increased from 10.5 to 50 judges per million population. Giving this

information in written reply to a question in the Rajya Sabha, Shri Salman Khurshid, Minister of

Law & Justice, said that the judge strength of the High Courts is reviewed every three years. The

data received from the High Courts for the triennial review of the judge strength of the High

Courts are analyzed in accordance with the guidelines fixed for the increase of the strength

which is based on number of cases filed and disposed.2

2
Judge Population Ratio available at: http://pib.nic.in/newsite/PrintRelease.aspx?relid=75772 (Visited on 14 April,
2019)
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PART – 2

HISTORICAL PERSPECTIVE

India has 19 judges per 10 lakh people on an average, according to a Law Ministry data which

also states that the judiciary faces a combined shortage of over 6,000 judges, including over

5,000 in the lower courts it.

According to the data, part of a document prepared in March this year for discussion in

Parliament, the judge-population ratio is 19.49 per million (10 lakh) people. The document states

that while the subordinate courts have a shortage of 5,748 judicial officers, the 24 high courts

face 406 vacancies. The working strength of the lower judiciary is 16,726 while the approved

strength is much higher at 22,474.

In the case of high courts, the approved strength is 1079, the actual strength is 673. The Supreme

Court, with a sanctioned strength of 31 judges, has six vacancies. Thus, the total number of

vacancies in the SC, the HCs and the lower courts come to 6,160 judges.

The debate on the judge-population ratio was re-ignited by then Chief Justice of India T S

Thakur in April, 2016 when in the presence of the Prime Minister, he had lamented the

governments “inaction” in increasing the number of judges from the present 21,000 to 40,000 to

handle the “avalanche” of litigations, saying, “You cannot shift the entire burden on the

judiciary“. He had said “nothing has moved” since 1987 when the Law Commission had

recommended increase in the number of judges from 10 judges per 10 lakh people to 50.
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But later the government had pointed out that in the 245th report, the Law Commission had

observed that filing of cases per capita varies substantially across geographic units as filings are

associated with economic and social conditions of population.

The Commission had according to the government, found that in the absence of complete and

scientific approach to data collection across various high courts, the rate of disposal method to

calculate the number of additional judges required to clear the backlog as well as to ensure that

the new backlog is not created, is more pragmatic and useful.

Recently, Law Minister Ravi Shankar Prasad had urged chief justices of the 24 high courts to

speed up recruitment of judicial officers for the lower judiciary as one of the reasons for high

pendency is lack of judges. He had urged the chief justices to hold timely examination and

interviews to recruit judges for lower courts.

In his August 14 letter, Prasad pointed out that there were a total of 2,76,74,499 cases pending in

the District and Subordinate Courts of the country. “One of the underlying reasons behind the

high pendency is sometimes the inordinate delay in filling up the vacancies of judicial officers,”

he wrote in the almost identical letters.

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YEAR- 1987

120th REPORT OF LAW COMMISSION OF INDIA, 19873

The report basically proposed judge to population ratio as a method to calculate judge strength.

The report highlighted upon the problem of judicial manpower planning which has not improved

proportionate to the development. Article 39-A of The Constitution of India, 1950 provides as a

Directive principle of State policy to provide judicial services to the citizens. In case of less

manpower, the disposal of cases is slow which affects the right of fair and speedy trial available

to the party guaranteed under Article 21, Constitution of India, 1950. The report stated that

another criterion is the correlation between number of judges and litigation rate. It will require

strength of 40,357 whereas present strength is 7,675 judges. There has been an inadequate

strength of Judges compared to the population of the country. But, the worst is the influence of

politics into the appointments.

YEAR- 1988

LAW COMMISSION OF INDIA, 127TH REPORT

The Law Commission had recommended that the state should improve the Judge-population

ratio, which at that time was 10.5 Judges per million population, to at least 50 judges within the

following five years. The Commission had further recommended that by the year 2000 India

should command at least 107 Judges per million of population4.

3
Law Commission of India, 120th Report on Manpower Planning in Judiciary: A Blueprint (1987)
4
Law Commission of India, 127th Report on Resource Allocation for Infrastructural services in Judicial
Administration-(A Continuum of the Report on Manpower Planning in Judiciary: A Blueprint) (June 1988)
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YEAR- 2002

85TH REPORT ON 'LAW'S DELAYS: ARREARS IN COURTS' PARLIAMENT

STANDING COMMITTEE,

In its 85th report on 'Law's delays: Arrears in courts', to be laid in Parliament during the Budget

session, the Standing Committee, chaired by senior Congress(I) leader and member of the Rajya

Sabha Pranab Mukherjee and consisting of more than 40 members drawn from the Lok Sabha

and the Rajya Sabha, has estimated that a staggering 2.4 crore cases are pending in the country's

courts. As on October 31, 2001, 2,03,25,756 cases were pending in the district and subordinate

courts, 35,57,637 in the High Courts and 21,995 in the Supreme Court5.

The Committee has found that a large number of vacancies of Judges and a low judge-population

ratio have caused a formidable accumulation of cases and inordinate delays in the dispensing of

justice. It feels the Indian judiciary, in spite of the many outstanding achievements it has made

on behalf of democracy and the rule of law, is faced with challenges that can only be met with

constructive cooperation among the three branches of the state (the executive, the legislature and

the judiciary), the fourth estate, and the people at large.

But cooperation between the three branches of the state on this issue, however, seems to be

elusive given the divergent perceptions as revealed by the Committee members. The views on

the judge-population ratio offer an example.

5
The law and delays by V. Venkatesan, available at:
https://frontline.thehindu.com/static/html/fl1905/19050260.htm (Visited on 09 February, 2019)
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The Standing Committee's report reveals that the government did not accept the Law

Commission's recommendation with regard to the judge-population ration. The government

argued that it would be a moot question whether to raise the number of judges simply on the

basis of population size. The government was also of the view that it would perhaps be

appropriate if the strength was increased on the basis of the pendency of cases and the average

rate of disposal.

The Committee, however, has expressed its disagreement with the government. The reasons

cited by the government for the mounting arrears of cases include, among others, industrial

development in the country and increased trade and commerce and pursuit of socio-economic

measures. The increase in the population could be added to these factors, the committee has

suggested. The Law Commission's recommendation was based on a rough-and-ready

computation; it should be accepted as a starting point with sufficient scope for variation on the

basis of pendency and disposal, the committee reasons. It has recommended that the Centre take

the initiative to provide funds to the States and create mechanisms to monitor their utilisation.

YEAR- 2002

ALL INDIA JUDGES ASSOCIATION V. UNION OF INDIA AND ORS6.

The Supreme Court observed that an independent and efficient judicial system is one of the basic

structures of our Constitution. If sufficient number of Judges is not appointed, justice would not

6
AIR 2002 SC 1752
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be available to the people, thereby undermining the basic structure. It is well known that justice

delayed is justice denied. Time and again the inadequacy in the number of Judges has adversely

been commented upon. Not only have the Law Commission and the standing committee of

Parliament made observations in this regard, but even the head of the judiciary, namely, the

Chief Justice of India has had more occasions than once to make observations in regard thereto.

Under the circumstances, we feel it is our constitutional obligation to ensure that the backlog of

the cases is decreased and efforts are made to increase the disposal of cases.

Apart from the steps which may be necessary for increasing the efficiency of the judicial

officers, we are of the opinion that time has now come for protecting one of the pillars of the

Constitution, namely, the judicial system, by directing increase, in the first instance, in the Judge

strength from the existing ratio of 10.5 or 13 per 10 lakhs people to 50 Judges for 10 lakh people.

The court further said that we are conscious of the fact that overnight these vacancies cannot be

filled. In order to have Additional Judges, not only the post will have to be created but

infrastructure required in the form of Additional Court rooms, buildings, staff, etc., would also

have to be made available. We are also aware of the fact that a large number of vacancies as of

today from amongst the sanctioned strength remain to be filled. We, therefore, first direct that the

existing vacancies in the subordinate Court at all levels should be filled, if possible, latest by 31st

March, 2003, in all the States. The increase in the Judge strength to 50 Judges per 10 lakh people

should be effected and implemented with the filling up of the posts in phased manner to be

determined and directed by the Union Ministry of Law, but this process should be completed and

the increased vacancies and posts filled within a period of five years from today. Perhaps

increasing the Judge strength by 10 per 10 lakh people every year could be one of the methods
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which may be adopted thereby completing the first stage within five years before embarking on

further increase if necessary7.

YEAR- 2012

IMTIYAZ AHMAD V. STATE OF U.P.& ORS8

The Supreme Court requested the Law Commission, to undertake an enquiry and submit its

recommendation in relation to keeping in view that timely justice is an important facet to access

to justice, the immediate measures that need to be taken by way of creation of additional courts

and other allied matters (including a rational and scientific definition of “arrears” and delay, of

which continued notice needs to be taken), to help in elimination of delays, speedy clearance of

arrears and reduction in costs.

YEAR- 2014

 LAW COMMISSION OF INDIA REPORT NO. 2459

Most often referred methods in most discussions for computing adequate judge strength

are: the judge-population ratio, the judge-filing ratio, the ideal case load method, times

7
All India Judges Association v. Union Of India, AIR 2002 SC 1752

8
(2012) 6 SCC 688

9
Law Commission of India, 245 th Report on Arrears and Backlog: Creating Additional Judicial (wo)manpower (July,
2014)
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based methods, and the rate of Disposal Method. Briefly analyzing these methods and

looking into their pros and cons.

PART-3

METHODS FOR CALCULATING ADEQUATE JUDGE POPULATION

RATIO

1. Judge to Population Ratio & Judge to Filing Ratio

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One method commonly advocated for determining how many judges are required in the

judicial system is the judge to population ratio, i.e., the number of judges per million

persons in the population.10 This method is afflicted with some limitations such as there is

no objective number by reference to which we can determine whether the judge to

population ratio of any State is adequate. It is known that filings per capita vary

substantially across geographic units. Filings per capita are associated with economic and

social conditions and can vary across India’s States by as much as a factor of 50. 11 The

justice needs of different societies thus vary, and no universal standard can be prescribed

in this regard. Therefore, while population might be the appropriate metric to measure the

availability of other essential services like health care and nutrition, it is not an

appropriate standard for measuring the requirement for Judicial Services.

2. Judge to Institution Ratio

Another similar method often referred to on various discussions is to look at the Judge to

Institution Ratio.12 This would tell how many judges a State has relative to the existing

pattern of demand for judicial services within that state. Here, again, however, there is no

ideal number of judges per 1000 instituted cases, by reference to which one can

determine whether or not a State needs more judges and by how much. Further,

institution figures often vary depending upon the issue area and the social identity of
10
All India Judges’ Association v. Union of India, (2002) 4 SCC 247
11
Theodore Eisenberg, Sital Kalantry, and Nick Robinson, Litigation as a Measure of Well-Being, 62(2) DEPAUL LAW
REVIEW 247 (2013) (describing the relative civil filing rate for different Indian states and showing that the civil filing
rate was higher in states with higher GDP per capita and a higher score on the Human Development Index).

12
See, e.g., Flango, Ostram & Flango, How Do States Determine the Need for Judges?, 17 STATE COURT JOURNAL 3
(1993) (explaining various methods, including the judge to institution/filing ratio as a method that is used in some
states in the United States for calculating how many judges need to be appointed in a particular Court)
 P a g e | 20

those instituting cases. Socially marginalized groups are likely to have lower institution

rates for reasons of lack of access to Courts. Institution figures may also vary depending

upon the geography. Far-flung areas, where physical access to Courts is a problem, may

have low institution figures compared to the population. No doubt, while these are not by

themselves reasons to discard the judge to institution ratio method but they do caution

that merely meeting some ideal ratio will not necessarily fulfill the justice needs of a

society.

3. The Ideal Case Load Method

Another method sometimes advocated for fixing the appropriate judge strength is the

ideal case load method. This method requires a determination of the ideal number of

cases that a judge should have on his/her docket. The total caseload (existing pendency

plus new institutions) can then be divided by the ideal case load to estimate the number of

judges required by the system. Where the number of cases per judge is disproportionately

higher than the ideal case load, additional judges are required to be recruited.

Limitations:

The ideal case load method seems difficult to implement in practice. First is absence of

any exhaustive study; one does not find any fixed criteria for determining what the ideal

case load should be. Generally, ideal case loads are fixed on an ad hoc basis. To give one

illustration, the Law Commission vide letter no. 6(3)/224/2012-LC(LS) dated 28.05.2012

had asked High Courts to provide “reasonable workloads that each category of Courts

(DJ, Sr. Civil Judge, Jr. Civil Judge/Magistrate) can bear in order to establish better and

speedy access to justice.” However, the information received from various High Courts

revealed that measurements of ideal case load for each cadre of judge varies widely
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across states. Thus for instance, the reasonable workload for the Higher Judicial Service

was suggested to be 120 in Madhya Pradesh, 500 in Andhra Pradesh, 750 in Jammu and

Kashmir and 1000 in Orissa. This wide variation across states is a result, in part, of the

lack of a rational basis for determining the ideal case load.

Second, different types of cases require different amounts of judicial time. A murder trial

is generally likely to consume much more time, for example, than a summary trial in a

petty offence. An ideal case load approach that looks only at the number of files before

the judge, will treat both cases as equal even though a judge with 500 murder cases is

likely to be over-stretched and one with 500 summary trials, under-utilized. To be

fruitful, the ideal case load method requires some analysis of the types of cases likely to

come up before a judge. Also, there is need to analyze as to the amount of time each type

of case normally takes. Such analysis may probably give an idea of what should

constitute ‘ideal case load’ before a judge. However, there is need to be cautious because

the existing case mix can change fairly quickly, for instance, through the emergence of

new laws and increased rights awareness. For example, The present section 138 of the

Negotiable Instruments Act, was a result of an amendment in 2002 vide the Negotiable

Instruments (Amendment and Miscellaneous Provisions) Act, 2002 (55 of 2002). This

provision has been wide used and has drastically changed the number and type of cases in

the case mix before the Subordinate Judiciary.

4. The Time Based Method

This method determines the time required to clear the existing judicial caseload. It then

determines the time available per judge for judicial work. Dividing the first number by

the second provides the number of judges required to deal with the existing caseload.
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In more detail, the time based method involves determining the ideal or actual time taken

by judges in deciding a particular type of case on average. Then it requires determining

the average number of cases of that type being instituted and pending in the Courts.

Multiplying the number of cases with the time required per case, gives the number of

judicial hours required to deal with cases of that type. Dividing this by the number of

judicial hours available per year gives the number of judges required to deal with cases of

that type. Adding this information for all types of cases that a particular category of

judges deals with gives the number of judges required for disposing of the caseload.

The Time-Based Method computes the number of judges using four pieces of data:

 The number of cases instituted by Court, district, and type of case

 The average bench and non-bench time a judge requires to resolve each type of case

within the Court

 The amount of time a judge has available to complete case-related work per year

 The number of active judges by Court and district

All the information required to run this model for Indian Courts is not available. In India,

the system does not have any information about the time required by judges to resolve

each type of case. This lack of information points to a larger systemic problem. Any

effort at delay reduction has to first determine how many cases in the system are delayed.

This requires determining what the normal time frame for a particular type of case should

be, such that anything beyond this time frame is considered delayed. The judicial system

has no such benchmark and, therefore, has no data on how many cases are delayed (as

opposed to pending).

5. The Rate of Disposal Method

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In the present scenario, especially in the absence of complete and scientific approach to

data collection that the commission finds the use of the Rate of Disposal Method to

calculate the number of additional judges required to clear the backlog of cases as well as

to ensure that new backlog is not created as more pragmatic and useful. This method

generally speaking addresses two important concerns: (a) a large existing backlog of

cases and (b) new being instituted daily which are adding to the backlog.

To address both these concerns, the Rate of Disposal Method can be applied to provide

for two sets of judges: (a) Number. of judges required to dispose of the existing backlog

and (b) Number of judges required for ensuring that new filings are disposed of in a

manner such that further backlog is not created.

Under the Rate of Disposal Method, one first looks at the current rate at which judges

dispose of cases. Next one determines how many additional judges working at a similar

level of efficiency would be required so that the number of disposals equals the number

of institutions in any one year time frame. As long as the institution and disposal levels

remain as they currently are, the Courts would need these many additional judges to keep

pace with new filings in order to ensure that newly instituted cases do not add to the

backlog.

Second, working with the current rate of disposal of cases per judge one is also required

to look at how many judges would be required to dispose of the current backlog.

Backlog, for the present, has been defined as those cases which have been pending in the

system for more than a year.13

13
Though the analysis in this report uses 1 year as the time frame for determining whether a case is backlogged or
not, this time period can be modified to suit the needs of different High Courts. The formula for analysis would
remain the same.
 P a g e | 24

The Rate of Disposal Method provides an approximation- a rough and ready calculation-

based on current efficiency levels of the Subordinate Judiciary, of the adequate judge

strength required to address the problem of backlog in the judicial system. The formula as

proposed below has been evolved largely based on the data that the Commission could

gather. With more precise data, the formula indicated below can be fine-tuned to provide

a more exact estimation of the additional judges required. Keeping in view concerns

expressed about other methods and other analysis as carried out here, the Commission is

of the view that the method proposed here could provide a reasoned basis (as opposed to

ad-hoc) for determining adequate judge strength.

The method is as below:

a) The method aims at calculating the number of judges required in each cadre of

Subordinate Court Judges, i.e., Higher Judicial Service, Civil Judge Senior

Division and Civil Judge Junior Division. For evolving the method, a separate

analysis of figures for institution, disposal and the working strength of judges in

each of these three cadres from 2010 to end 2012 was carried out.

b) Disposals for one cadre of judges (e.g., Higher Judicial Service) are divided by

the working strength of judges in that cadre. Working strength refers to

sanctioned strength minus vacancies and deputations. This division gave the

annual Rate of Disposal per judge in a cadre for each year from 2010 to 2012. The

average of this annual rate of disposal figures gave the Average Rate of Disposal

per judge in that cadre.

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c) An average of the annual institutions before each cadre of judge for the years

2010-12 was taken. 14 The average institution was divided by the Average Rate of

Disposal per judge for that cadre to give the number of judges required to keep

pace with the current filings, and ensure that no new backlog is created. This

figure has been described as: The Break Even Number.

d) Subtracting the current number of judges from the Break Even Number gives us

the Additional Number of Judges required to ensure that the number of disposals

would equal the number of institutions.

e) The backlog for a particular cadre of judges (defined as all cases pending before

that cadre of judges for more than a year) was then divided by the rate of disposal

for that type of judge. This gave the number of judges required to clear the

backlog within a year. Dividing this number by 2 gives the number of judges

required to clear the backlog in 2 years, and so forth.

6. Unit based system model

The National Court Management Systems Committee (NCMSC) proposed a unit system-

based interim model to calculate judicial strength for subordinate courts, which remains

to be the status quo till date.The unit system essentially is a performance assessment

criterion to evaluate judges based on the cases disposed. Depending upon the severity of

the case, each type of case is given certain number of units, which varies from one state

14
The use of the average annual institution in the last three years as the basis for analyzing future demand for
judicial resources bears explanation. Some High Courts provided us with data on institution, disposal and pendency
for the last 10 years, i.e., from 2002-2012. However, we have decided to look at institutions only for the last three
years. Given that the demand for judicial resources keeps changing depending on new laws being promulgated,
changes in awareness of the law, changes in socio-economic conditions of society, etc, the recent data is a better
predictor of what is likely to be the demand for judicial resources in the next plan period, than past data.
 P a g e | 26

to another. Judges in subordinate courts are assessed based on the points achieved in

every quarter. Based on this criterion, the NCMSC proposed a unit system-based model

as an alternative to the Law Commission’s rate of disposal method. In 2017, the Supreme

Court rejected the Law Commission’s report. The final model to calculate judges’

strength, which was to be created by December 31, 2017, is yet to be seen.

What is the best method to calculate judges’ strength?

The answer to this question is “none of the above.” Both, the judge to population ratio,

and the rate of disposal method, suffer from serious flaws. While the latter does not take

into account the workload of courts since the focus is on population, rather than filings or

number of cases pending, the former does not differentiate between different types of

cases as explained above. The unit system-based method proposed by the NCMSC is also

inadequate, as there is no scientific rationale on which units are decided for each of the

category of cases in different states.15

The best alternative would be a time based weighted case load model which proves to be

the most scientific method to determine judicial strength. The model is widely practiced

in the United States. It takes into consideration three important indicators i.e. the time

spent by judges on different types of cases, average annual filings or number of pending

cases and total time available per judge in a year. The resulting value would indicate the

number of judges that will be required to handle the current caseload of a particular court.

With the availability of yearly court-related statistics, the introduction of the National

Judicial Data Grid, and the e-courts system (a government website that provides real-time

15
How do we measure the number of judges for Subordinate Courts in India? By Arunav Kaul availbale at:
https://barandbench.com/number-judges-subordinate-courts/ (Visited on 12 February 2019)
 P a g e | 27

information of progress of cases registered in courts), carrying out such a study has

become a reality.

It is therefore important that courts adopt a scientific model that can accurately calculate

adequate judicial strength. Conducting a ground level study will help in understanding

the varying workload of different courts which can be used to compute the workforce.

While the final model is yet to be finalized, let us hope that India marches towards

scientific reforms for assessing judicial strength in subordinate courts16.

PART – 4

VACANCIES IN JUDICIAL SERVICES

This is the most prominent cause of delay. Now-a-days, it makes one of the most fiercely

debated issues. Huge number of vacancies poses a major hurdle for the speedy justice.

Even in Supreme Court, sanctioned strength for the judges is 31 while working strength

is just 25 that suggest six posts of judges are still vacant. Perhaps, on this issue both

judiciary and executive are at odds with each other. Few months back, Supreme Court

admonished the Centre and asked "whether the Centre intends to bring the entire

judiciary to a grinding halt by sitting on recommendations of the collegium for

appointment and transfer of judges to High Courts across the country." Further, our

country has witnessed a lot of chaos over the issue of NJAC. NJAC i.e. National Judicial

16
Supra note 14
 P a g e | 28

Appointment Commission was a proposed body established vide Ninty-Ninth

Amendment Act, 2015 for the appointment of judges in higher judiciary. But later, NJAC

was struck down by Constitution Bench of Supreme Court on the grounds of

unconstitutionality. Therefore, Apex Court once again upheld the collegiums system for

the appointment of judges. The present NJAC row has handicapped and proved to be a

setback for the appointment of judges to the respective courts.

India has 19 judges per 10 lakh people on an average, according to law ministry data

which also states that the judiciary faces a crippling shortage of over 6,000 judges,

including over 5,000 in the lower courts. According to the data, document prepared in

March this year for discussion in parliament, the judge-population ratio is 19.49 per

million people.17

The document states that while the subordinate courts have a shortage of 5748 judicial

officers, the 24 high courts are faced with 406 vacancies. The working strength of the

lower judiciary is 16,726 but the approved strength is much higher at 22,474.

Thus, the total number of vacancies in the Supreme Court, the high court and the lower

courts come to 6160 judges.

If we compare the ratio with some of the other countries we can see the vast difference

between us and them for example 41 judges in Australia, 75 in Canada, 51 in U.K. and

107 in United States.

17
India Has 19 Judges per 10 Lakh People: Law Ministry Data, available at: https://www.thewire.in/law/india-has-
19-judges-per-10-lakh-people-law-ministry-data (Visited on March 2,2019)
 P a g e | 29

The number of vacancy in subordinate courts are also not less in any manner, it has risen

to such a situation that Supreme Court passing a suo motu order in the wake of the

alarming number of vacancies in the subordinate judiciary across the country, Chief

Justice Ranjan Gogoi on 22nd October 2018 required, under Article 142, all High Courts

to report to the registry of the Apex Court about the steps taken to fulfill such vacancies.18

Vacancy in Supreme Court & High Court Till end of January 2019 as per NJDG19

Vacancy in Supreme Court And High Courts Till 1st March, 2019 as per NJDG20

Name of the Court Approved Strength Working Strength Vacancies

Supreme Court 31 28 03
High Courts 1079 685 394

18
Breaking: SC Takes Suo Motu Cognizance On Lower Court Vacancies, Asks HCs To Report On Status Of
Appointments [Read Order] by Mehal Jain, available at: https://www.livelaw.in/breaking-sc-takes-suo-motu-
cognizance-on-lower-court-vacancies-asks-hcs-to-report-on-status-of-appointments/ (Visited on March 2,2019)

19
Data on vacancy of judges in India, available at http://njdg.ecourts.gov.in/njdg (Visited on 10 February 2019)
20
National Judicial Data Grid (District and Taluka Courts of India), available at:
http://njdg.ecourts.gov.in/njdg_public/main.php (Visited on February,17,2019)
 P a g e | 30

Types of Matters Pending in Supreme Court21

Pending Matters-
57,346

Admission Matters Regular Hearing

(36,447) Mttters
Miscellaneous 20,899

Complete Incomplete Ready Regular

Miscellaneous Miscellaneous Hearing
27,233 9,214 20,694

The above statistics are obtained from Supreme Court Website and are relevant as on 01-03-

2019.

21
Supreme Court of India, Statistics, available at: https://www.sci.gov.in/statistics (Visited on February,17,2019)
 P a g e | 31

Filling up of vacancies in subordinate judiciary and the manner of their functioning is primarily

the responsibility of the High Court concerned and the state governments, whereas it is the

Supreme Court Collegium that makes the recommendation for appointment of judges in high

courts and the apex court.

VACANCY IN LOWER JUDICIARY22

WORKING STRENGTH – 16, 726

APPROVED STRENGTH- 22,474
VACANCY - 5748

22
India has 19 judges per 10 lakh people: Data, available at: https://www.thehindubusinessline.com/news/india-
has-19-judges-per-10-lakh-people (Visited 09 February, 2019)
 P a g e | 32

Vacancies in subordinate courts in 201623

23
How many judges does India really need? by ALok Prasanna Kumar, available at:
https://www.livemint.com/Politics/3B97SMGhseobYhZ6qpAYoN/How-many-judges-does-India-really-need.html
(Visited on 10 April, 2019)
 P a g e | 33

Shortfall of Judges and lack of Judicial Infrastructure

Against the sanctioned strength of around 21,600 judges in India, there were around 4,870

vacancies in various courts in India by the end of 2015. It means, there was around 25% position
 P a g e | 34

vacant against the sanctioned strength. Moreover, apart from the shortage of Judges, there is

another problem of the lack of judicial infrastructure in India. To elaborate, at present, there are

around 16,500 court rooms in India, leaving a shortfall of around 4,000 court rooms. Hence, even

if all the vacancies are filled in, it would not serve the purpose.

The Supreme Court with a sanctioned strength of 31 is functioning with 25 judges, figures put

out by the department of justice in the ministry say. 

The 24 high courts have a sanctioned strength of 1,079 judges, but with 395 vacancies they are

functioning with 684 judges. The sanctioned strength was 906 in June, 2014. While the

sanctioned strength has gone up, the working or actual strength has not gone up considerably. 

But in cases of the lower courts, the sanctioned strength of judicial officers has gone up and the

vacancies have gone down since 2014. In 2014, the sanctioned strength of the lower courts was

20,214 judicial officers/judges. In 2017, it rose to 22,677. The working strength in 2017 was

registered at 16,693, whereas, in 2014, it was 15,634.  At the end of 2017, the subordinate courts

had 5,984 vacancies. 

Large number of pending court cases

The situation looks all the more pathetic when we come across the fact that as on 31st December,

2015, there were 38.76 lakh cases pending in High Courts alone. Out of this, around 20% cases
 P a g e | 35

were more than 10 years old. Similarly, out of 2.18 crore cases pending in the lower courts,

around 1.46 crore were that of criminal cases and over 72 lakh cases were of civil nature. For the

last three years, the Supreme has been able to improve upon its performance. Whereas it

disposed off 40 thousand odd cases in 2013, the number went up to 47 thousand odd cases in

2015. But in case of High Courts, the numbers went down from 17.72 lacs cases in 2013 to just

16.05 lacs cases in 2015. Lower courts have also shown a fall in the number of cases disposed

off during the same period, while the disposal was that of 1.87 crore cases in 2013, the figure

came down to 1.78 crore cases in 2015. But still, these figures are not very encouraging. A lot

more has to be done not only to dispose of the existing cases, but also to see that the numbers do

not go up in future at such an alarming rate as has been in the past.

Possible Solution

Every year many vacancies are created through retirement. It takes time to select and train new

judges to replace the retiring ones. In the meantime, the backlog piles up. To deal with this

concern, the Commission recommends that in addition to recruiting new judges, the age of

retirement of subordinate judges be raised to 62 in order to meet the need for a large number of

adequately trained judicial officers. The benefit of increase in the retirement age can be made

available to judicial officers in terms of the directions of the Supreme Court in All India Judges’

Association v. Union of India.24 Further, the directions of the Supreme Court in Malik Mazhar

24
In All India Judges’ Association v. Union of India, decided on November 13, 1991, AIR 1992 SC 165, the Supreme
Court had directed that the age of superannuation be for subordinate Court Judges be raised to 60 years.
 P a g e | 36

Sultan v. U.P. Public Service Commission25 regarding the time bound filling of vacancies, needs

to be strictly adhered to.

So before going any further to increase the number of judges as demanded we need to fill the

vacant seats.

PART-5

JUDGE POPULATION RATIO IN INDIA & OTHER RELEVANT COUNTRIES

25
(2008) 17 SCC 703.
 P a g e | 37

India Judge Population Ratio has seen a marginal increment in the years.26

The country's judge-population ratio has gone up marginally in the past three years

against the backdrop of increased sanctioned strength, latest data of the law ministry

says. Based on the 2011 census and sanctioned strength of judges of the Supreme Court,

the 24 high courts and numerous subordinate courts, the ratio stands at 19.66 judges per

million (10 lakh) people. The ratio was 17.48 judges per million in 2014, according to

ministry figures put in public domain. 

Judge Population Ratio (per 10 Lakh people) -

2014 17.48 Judges per Million

2018 19.66 Judges per Million

JUDGE POPULATION RATIO OF OTHER IMPORTANT COUNTRIES

Following are the data’s showing their judge-population27- 

26
India's judge-population ratio goes up marginally available
at: https://economictimes.indiatimes.com/articleshow/62400461.cms?
utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst as viewed on 12th April 2019 (Visited on
10 March, 2019)
 P a g e | 38

Country Judges Per Million

Australia 41
Canada 75
England 51
USA 107

These datas have been innumerably cited in various reports and analysis but if we take a

fresh perspective then we must understand Singapore who being among the countries

with the fewest judges per 100,000 capita (0.64) has one of the highest clearances rates of

all the surveys countries (94 %) or how judge-population ratio across countries have been

decreasing only but in country like Germany it has not been a cause of delayed

justice.28Indeed India’s muddles are significantly different considering our complex

variations and increasing politicization of Judiciary.

FINDINGS

Having gone through the previous paragraphs, it is evident that the judicial infrastructure

in the country is not up to the mark; the “Judge-Population Ratio” is very low compared

to the developed nations; there is a huge backlog of the pending case and the number is
27
C.J. Bharucha: Speech Delivered in Kerala organized by the Bar Council of India and Bar Council of Kerala
Published in India Bar Review Vol XX VIII (4) 2001 p 2
28
Maria Dakolias, Court Performance Around the world: A Comparative Perspective,
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1009&context (Visited on 4 March 2019)
 P a g e | 39

further increasing at an alarming rate; there is an acute shortage of judges at all levels;

there is a lack of enthusiasm and sufficient budgetary support on the part of the State as

well as Central Government; there is a lack of goodwill and coordination between the

Judiciary and the Executive (the Governments).

Thus, on the one hand the Government has blamed the judiciary that Collegiums are not

recommending the names to the Government, on the other hand, the judiciary has its own

stand and said that how could the government expect the Collegiums to recommend more

names when the decision on the previously recommended names was still pending.

Keeping in mind the shortage of Judges in the Lower Courts as well, it is not possible to

fill all vacancies in one go. For example, if there are 75 vacancies in Allahabad High

Court, how can the Collegiums, recommend names for all of these vacancies in a one go.

It will then result into the shortfall of judges in lower courts. Moreover, it is not that easy

to find candidates fulfilling the laid down criteria. The criteria are required to be lowered

down so as to get enough candidates for selection process. It has also been noticed that

good lawyers are reluctant to accept judgeship. One cannot blame them for refusing to

become judge on monetary considerations because the honor, prestige and the dignity

attached to the position of a judge sufficiently compensates the monetary losses. It is also

argued that many good lawyers do not feel that there is too much of dignity attached to it.

If this is really true, then this attitude is not good and must change.

Government’s Initiatives
 P a g e | 40

For the last 4 – 5 years, there have been some efforts on the part of governments to

improve upon the judicial infrastructure. According to an estimate, the government

spending on this account from 1993 to 2011 (for long 18 years) was a meager Rs 1,245

crores under the “Centrally Sponsored Schemes”. The figure went up to Rs 3,695 crores

in a short span of four years i.e. from 2012 to 2016. But this amount is still not enough

keeping in mind the degree of shortfall in the judicial infrastructure.

INTERNATIONAL SCENARIO

Increasing the retirement age of judges

The issue of increasing the age of retirement for judges featured in the Venkatachaliah

Report (Report of the National Commission to review the working of the Constitution) as

early as 2002. A half-hearted attempt was made in 2010 to bring in the Constitution

(114th Amendment) Bill to raise the retirement age of High Court judges to 65 from 62

years. The amendment never came through. The idea of increasing the age of retirement,

which has gained traction in recent times, has now been brought into sharp focus by

Justice Kurian Joseph of the Supreme Court.

 The case in Western democracies

A retirement age of around 70 for judges is commonplace in most Western liberal

democracies. Some of them even opt for tenures for life. In the Supreme Court of the

United States, and in constitutional courts in Austria and Greece, judges are appointed for

life. In Belgium, Denmark, Ireland, the Netherlands, Norway and Australia, the

retirement age for judges is 70 years. Judges in Canada and Germany retire at 75 and 68,

respectively.
 P a g e | 41

For good reasons, the time has come for India to consider increasing the retirement age

for judges of the High Courts and the Supreme Court to 70. This will have significant

benefits. Senior serving judges will bring with them years of experience.

The judge-population ratio in India is among the lowest in the world at 19.66 judges per

million (10 lakh) people as of today. In 2016, the U.K. had 51 judges per million people,

the U.S. had 107, Australia had 41, and Canada had 75.

It is also necessary to increase the number of judges in the pool to enable the judiciary to

deal with the enormous pendency of cases. The Chief Justice of India, Dipak Misra,

recently expressed concern over the backlog touching 3.3 crore cases. According to

National Judicial Data Grid data, more than 2.84 crore cases are pending in the

subordinate courts, 43 lakh cases are pending before the High Courts, and 57,987 cases

are pending before the Supreme Court. The fact that judges in India are retiring at 62 and

65 years is not helping alleviate this problem either. We are losing judges who are trained

by time and experience well before their prime. If legislations provide for retired High

Court and Supreme Court judges to man tribunals till the age of 70, there is no reason

why these judges should be retired so early.

One aspect which has not been factored in is that as the Indian economy grows, the ratio

of litigation to population will increase exponentially. Advanced economies such as

Australia, Canada, France, the U.S., the U.K., and Japan have much higher litigation-to-

population ratios.

Positive consequences
 P a g e | 42

The issue of increasing the retirement age of judges thus requires serious and immediate

consideration and must necessarily move beyond partisan politics. The time has come to

deal with the lakhs of cases pending as arrears before the 24 High Courts in India for

periods as long as 10-20 years. Pendency does not not only debilitate the justice redress

system; it also makes the rule of law a distant dream. More and more litigants now enter

the justice redress system without the faintest hope of seeing closure in their lifetimes.

Increasing the age of retirement for Supreme Court and High Court judges has significant

advantages. One, it will ensure the continued presence of a strong talent pool of

experienced judges. Two, new judges can be appointed without displacing existing

judges. Three, it will address the problem of mounting arrears. Four, it will be a buffer

against impending litigation explosion. Five, it will render post-retirement assignments

unattractive and, as a consequence, strengthen the rule of law and the independence of the

judiciary, both of which are crucial to sustain democracy.

Some glaring facts substantiating the need to increase the Judge

Population Ratio:

1) Over three crore cases are pending in Indian courts. In 2009, then Prime Minister

Manmohan Singh said that India had the world's largest backlog of court cases.

In 2010, Andhra Pradesh High Court's Justice V.V. Rao said that it will take 320 years to

clear the backlog.

 P a g e | 43

2) As of December 2014, 64919 are pending in the Supreme Court. At the end of 2013,

there were 44.5 lakhs cases pending in High Courts and 2.6 crore cases pending in district

courts.

It is estimated that even if all the judges attacked their backlog without breaks for eating

and sleeping, and closed 100 cases every hour, it would take more than 35 years to catch

up.

3) With 10,43,398 pending cases, Allahabad High Court, which serves the India's most

populous state of Uttar Pradesh, has the world record.

4) As of December, 2014, Delhi High Court has64652 cases pending before it.

In 2009, former Chief Justice of the Delhi High Court A.P. Shah, who retired in 2010,

said that it would take the court approximately 466 years to clear the pending 2,300

criminal appeals cases alone.

5) The current rate of disposal suggests that it could take 10 years for district courts to

clear the backlog. In the district courts of at least six states, more cases are being filed

than disposed off every month, which means that the pending cases will never be cleared.

6) Justice Markandey Katju, a retired Supreme Court judge, has said that judges should

not have more than 300 cases pending at any one time, but judges in India have 15,000 to

30,000 pending cases.

7) At the end of 2014, there were 2.82 lakh under trial prisoners languishing in jails.

Almost 68 percent of all inmates in the country's 1,387 jails are under-trials, and many of

them are too poor to raise bail.

In September 2014, the Supreme Court directed release of under-trial prisoners who had

completed at least half their maximum prison term.

 P a g e | 44

8) In 2009, Commonwealth Human Rights Initiative reported that the average time spent

by an under-trial in jail from the time he is brought into prison and can leave – whether

through plea bargaining or on bail – is 266 days or just under nine months in prison.

CHRI reported that the average was up by thirty-two days or just over a month from 224

days or seven months in 2005.

9) In 1987, 7,675 judges served in the Indian judiciary, which worked out to 10 judges

for every million people. The Law Commission then had recommended an increase in the

number of judges to 40,000 to provide 50 judges for a million people. At the time,

the corresponding figures in the United States, United Kingdom, Canada and Australia

were 107, 51, 75 and 42 respectively.

In 2016, India's judge-population ratio of 17 judges per million is among the lowest in the

world. On an average, developing nations have 35-40 judges for a million citizens, while

developed countries have 50.

10) As of April 2016, there are 4,600 vacancies in the subordinate judiciary, which is

more than 23 percent of the strength, and 462 vacancies in the in the High Court, which is

44 percent of the strength.

11) As of 2013, only 5.8 percent of the total number of judges in India’s 24 courts is

women.

12) While some cases have been pending for decades, BBC reported on one trial which

has lasted for over a century. The Doshipura court case, which started in 1878, is a

dispute between Shia Muslims and Sunnis over two acres of land in Varanasi.
 P a g e | 45

PART-6

BACKLOG OF CASES

Pendency has been defined by the Black’s law dictionary as “Suspense; the state of being

pendent or undecided; the state of an action, etc.. after it has been begun, and before its

final disposition .” In Merriam-Webster dictionary the legal definition of pendency is,

“the quality, state, or period of being pendent.” The synonyms abeyance, adjournment,

break, cessation, continuance, hiatus, interim, interlude, intermediate time, postponement,

recess, respite, suspense, suspension and temporary stop are often used in place of the

word pendency.
 P a g e | 46

The Law Commission’s Report number 24529 talked about pendency and other related

terms. “There is no singular or clear understanding of when a case should be deemed as

delayed. Often, terms like 'delay,' 'pendency,' 'arrears,' and 'backlog' are used

interchangeably. This gives rise to confusion. To avoid this confusion and for the

attainment of clarity, these terms may be understood as follows:

a. Pendency: Cases instituted but not disposed of, irrespective of the time of institution

of the case.

b. Delay: Cases that have been in the Court/judicial system for longer than the normal

time that it should take for them to be disposed of.

c. Arrears: Some arrears and delayed cases might remain in the system for longer than

the normal time, for valid reasons. Those cases that show unwarranted delay are 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.

Therefore, as is evident, defining terms like delay and arrears require computing ‘normal’

case processing time standards which can be calculated using various statistical and other

techniques.”

A report by Daksh30 lays down the differentiation between these terms. ‘Pendency’

consists of the universal set of cases which have been filed and not been disposed of,

29
Law Commission of India, 245 th Report on Arrears and Backlog: Creating Additional Judicial (wo)manpower (July,
2014)

30
Judicial Efficiency and Causes for Delay by Alok Prasanna Kumar, available at: http://dakshindia.org/state-of-the-
indian-judiciary/20_chapter_09.html#_idTextAnchor231 (Visited on February 4, 2019)
 P a g e | 47

‘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 its disposal, and ‘arrears’ being a further subset of

‘delay’ where the case has taken a longer time and no ‘valid reasons’ extrapolate the

same. It can be represented as the following Venn diagram. Here, the term pendency

means all instituted cases that are not disposed. Delay and arrears are subsets of

pendency, and arrears are a subset of delays. The definition of delay depends on

rationally determined normal times. Arrears are those delayed cases where valid reasons

for delay are omitted.

Representation of ‘Pendency’, ‘Delay’, and ‘Arrears’ by Daksh31

31
Supra Note 30
 P a g e | 48

The latest statistics on pendency of cases, at all levels of courts across the country, makes

it evident that a lot requires to be done to fulfill the mandate of speedy justice.

The data, collated from the web-portal of National Judicial Data Grid (NJDG) and the

court websites, indicates not much has changed in the last few years although the huge

pendency of cases have taken the centre stage in several deliberations between the

judiciary and the government.

The data clearly shows the amount of pendency has in no way gone down after

implementing so many schemes and legislations and new forms of case disposal

systems32.

Particulars Civil Cases Criminal Total Percentage

Cases
Cases Pending over 10 605545 1837144 2442689 8.32%
years
Cases Pending 1290264 3432718 4722982 16.08%
(Between 5 to 10
years)
Cases Pending 2569186 5814298 8383484 28.55%
(Between 2 to 5 years)
Cases Pending less 4088772 9730586 13819358 47.06%
than 2 years
Total Pending Cases 8553767 20814746 29368513 100%

32
Supra Note 19
 P a g e | 49

Delay Reasons Pendency Pie Chart

Awaiting Record
Bulky Case
Execution Delays
Huge Pendency
Offshoots
Securing Presence

Matter Type Pendency

Original
Appeal
Application
Execution

Other factors governing pendency of cases are given in the table-

 P a g e | 50

Sr.

No Delay Types Short Names

1 Parties not interested - PARTIES NOT

Infructuous litigation INTERESTED

2 Complex litigation COMPLEX LITIGN

3 One or more accused not ACCUSED

attending/absconding - ABSCONDING

Accused from Other State

4 Stayed by SC SC STAYED

5 Stayed by HC HC STAYED

6 Stayed by DC DC STAYED

7 Stayed for other reasons STAYED OTH

8 Parties or LRs could not be LRs NOT ON RCRD

served - not brought on

record

9 Misc. Applications blocked ROAD BLOCK BY

main case progress MISC. APLN

10 Awaiting for document- AWAITING

property-report from other SOMETHING FROM

authority AUTHORITY

11 Difficulty in securing IMP WITNS

 P a g e | 51

Sr.

No Delay Types Short Names

presence of IMP witness PRESENCE

12 Repeated obstructions in OBSTRUCTIONS IN

execution of decree EXE

13 Repeated unsuccessful FAILED ATTEMPTS

attempts to recover money OF RECOVERY

under decree

14 Record of the case is sent to RECORD NOT

Other Court or missing or AVALBE

destroyed - full or in part

15 Pendency very heavy hence HEAVY PENDENCY

time cannot be given to the IN COURT

case

16 Parties are taking more time PARTIES TAKING

to complete evidence MORE TIME IN

EVID.

17 Frequent challenge to FREQUENT

interim orders CHALLENGE TO HC

 P a g e | 52

Stage Wise Pendency Pie Chart

Appearance/ Service Realted

Compliance/ Steps/ Stay
Evidence/ Argument/ Judgment
Pleadings/ Issues/ Charges

 SPECIFIC CAUSES OF DELAY

Besides the causes of delay which we discussed earlier, there are some specific causes of

delay in civil matters. Some of them are following-

A. Frequent Adjournments

Frequent adjournments halt the justice delivery mechanism in civil matters. Law

Commission of India in its Seventy Seventh Report also stated frequent adjournments as

an important cause of delay. The Code of Civil Procedure provides that "no such

adjournment shall be granted more than three times to a party during hearing of the suit."

But unfortunately, our courts don’t follow this mandate properly. A report in Times of

India on 26th July 2016 which pointed out the average adjournment provided by the courts

in each civil and criminal case.

B. Delay in serving of summons

 P a g e | 53

Serving Summons is a process to compel the attendance of defendant. Order V provides

that "when a suit has been duly instituted, a summons may be issued to the defendant to

appear and answer the claim." Generally, people try to be evasive to avoid the service of

summons. Consequently, it delays the speedy trial. The Code provides for two types of

service of summons- personal service and substituted service. In case, defendant tries to

avoid the service of summons court must evoke Rule 20 of Order V which deals with

substituted service. Substituted Service is the best mode to avoid the delay in service of

summons.

C. Delay in filing Written Statement

Order VIII CPC provides that "defendant should file Written Statement within 30 days

from the date of service of summons on him." But this provision is not followed in its

true letter and spirit. Defendants tend to employ delaying tactics to prolong the matter by

not filing written statement in time. As a result, delay in filing written statement

contributes to pendency of cases.

D. Non-appearance of parties at the day fixed for hearing

As per the provisions of CPC, if none of the parties appear on the day fixed for hearing

the suit will be dismissed. As a result, plaintiff may institute a fresh suit or court may

restore suit. Similarly, if only defendant appears and plaintiff doesn't appear the case shall

be dismissed by the court. Therefore, non-appearance of parties at the day fixed for

hearing also contributes in delaying the matter.

E. Non-adherence to the provisions of Sec. 89.

Section 89 CPC was inserted vide amendment in 2002 which deals with the out of court

settlement of disputes. It implies that if the court opines that there is a chance of possible
 P a g e | 54

settlement then it should send the dispute for alternative dispute resolution methods rather

than proceeding with the regular trial.

ADR processes in India are still at nascent stage, and at present most parties to disputes

still prefer to resolve their conflicts through litigation. Non-compliance with the

provisions of this section also causes delay in civil matters. The Arbitration and

Meditation Centers/Institutions currently existing in India mostly cater to the commercial

disputes.

WOMEN JUDGES RATIO IN INDIA IN PERCENTAGE

INDIA - 28% of the total strength.

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STATES WITH LEAST WOMEN JUDGES RATIO

S. No. Name of State Percentage

1. Bihar 11.52%
2. Jharkhand 13.98%
3. Gujarat 15.11%
4. Jammu and Kashmir 18.62%
5. Uttar Pradesh 21.40%

WOMEN JUDGES RATIO IN EUROPEAN UNION

Highest and lowest percentage of female judges in Europe

S. No. Name of State Percentage

1. Slovenia 78%
2. Latvia 77%
3. Romania 74%
4. Azerbaijan 11%
5. Armenia 23%
6. Northern Ireland and Scotland 23%

According to the report, 51% of judges in Europe are female33.

WOMEN JUDGES RATIO IN US STATES

State Court Judges in the US: 5,947 women / 17,840 total (33%)34

Women at all levels of judiciary are critical to address certain issues that can have very

wide social and political ramifications:

33
UK has lowest proportion of female judges in the EU available at: https://www.bbc.com/news/uk-37575212
(Visited on 11 March 2019)

34
National Association of Women Judges, 2018 US State Court Women Judges, available at:
https://www.nawj.org/statistics/2018-us-state-court-women-judges (Visited on 11 April 2019)
 P a g e | 56

1. Inadequate representation could aggravate biases in the courts;

2. Lack of women in courts lead to questions of the courts’ legitimacy as representative of

the societies they serve;

3. Presence of women judges signals equality of opportunity for women in the legal

profession and an appointments process that is fair, non-discriminatory and based on

merit.

4. Diversity in judges will help people to believe on judiciary.

PART-7

OBSERVATION AND CONCLUSION

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Observations

i) Appointment of judges on a priority basis: The situation is indeed grim, and is

getting worse by the moment. In all states, there is a significant backlog of cases

which requires a massive influx of judicial resources even if one takes a 3 year

time frame for clearing backlog. Bihar, for example, requires an additional 1624

judges to clear backlog in three years. The problem of backlogs is compounded by

the fact that in some states, Courts are unable to even keep pace with the new

filings, thus adding to the already huge backlog. As the data shows, even where

the Courts are breaking even, the system is severely backlogged and requires

urgent intervention.38 Given the large number of judges required to clear backlog

and the time it will take to complete selection and training processes, the Law

Commission recommends that the recruitment of new judges should, therefore,

focus, as a matter of priority, on the number of judges required to breakeven, and

to dispose of the backlog in a 3 year time frame. This has to be dealt with on a

priority basis, otherwise the already severe problem of backlogs will only get

worse.

ii) Special Traffic Courts: The figures for institution and disposal do not include

traffic challans/police challans. As mentioned in Part III A above, the Law

Commission recommends that these cases be dealt with by Special Courts, over

and above the regular Courts. The Special Courts can function in morning and

evening shifts. Much of the work of these Courts is likely to require very little

judicial involvement. Therefore, recent law graduates can be appointed for short

durations, e.g., 3 years, to preside over these Courts. Providing online facilities for
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the payment of fines, or separate counter facilities in Court precincts for this

purpose, can ease the work load of these Courts considerably. In order to ensure

fair process, Special Traffic Courts should deal only with cases which involve

fines. Where imprisonment is a likely consequence, the matter should be heard by

a regular Court. Staffing such Courts with recent law graduates will also have the

added benefit of providing such graduates with a meaningful stepping stone for

careers in litigation or the judicial services. It is to be noted that the Backlog

figures do not exclude traffic challans. Data on what proportion of pending

traffic/police challans were more than a year old were not available. However,

given that these cases generally do not require much judicial involvement, most of

these cases are not likely to be backlogged.

iii) Periodic Needs Assessment for the Judiciary: The present work is based on

analysis of institution, disposal and pendency data for the time period 2010-12.

Institution and disposal trends can and will change over time. New laws, greater

awareness of rights, changing social circumstances, and even the reduction of

judicial delay are likely to lead to an increase in the number of cases being

instituted. At the same time, better infrastructure, more support staff, access to

time-saving technology and better training are likely to increase the efficiency

levels (and hence, rate of disposal) of judges. Since the method of calculating

Additional number of Judges depends on these figures, the Law Commission

recommends that the trend of institutions and disposals should be constantly

monitored by the High Courts, in order to meet the evolving needs of the

judiciary. Using the formula provided above, judge strength should be increased
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periodically, particularly when institution rates start climbing over disposal rates.

The Commission also recommends that in order to engage in this analysis, High

Courts should put in place reliable and regular data collection and management

systems.

iv) Efficient Deployment of Judicial Resources: The Commission recognizes that

apart from increasing the judge strength, there is also need for efficient

deployment of the additional judicial resources. While the rate of Disposal

Method indicates how many additional judges are required it does not indicate

how these additional judicial resources should be allocated (e.g., which Courts,

which districts, what types of cases) to best meet the goal of delay reduction.

Further, the Commission also recognizes that the most efficient allocation of

resources will depend upon various local factors and micro level analyses, for

which pan-India recommendations may be inappropriate. Therefore, the Law

Commission recommends that once appointments are made, High Courts should

make appropriate allocation of judicial work, keeping in mind the following

factors:

It is also important to note that not every case requires the same amount of judicial time

or resources. A petty case may be considered delayed if it takes more than 3 months

whereas a murder case may be considered disposed of well in time if it takes 6 months

for disposal. However, the rate of Disposal Method does not take this complexity into

account. The Commission has taken one, two and three years as the time frames within

which pending cases should be disposed of. However, one year might be too much time

for some cases, and too little for others. A benchmark to determine delay and the
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requisite age wise break up of cases by subject area, can help to determine what

percentage of cases are delayed and hence require targeted intervention. On the general

principle of first in, first out for each type of case, High Courts should allocate more

resources for Courts with more delayed pending cases.

Similarly, even if a Court has a relatively high rate of disposal, some cases in that Court

might be very old and moving at a very slow pace, compared to the bulk of the case load,

which may be simpler and moving at a much faster rate. Since the overall rate of disposal

averages out the rate of disposal of specific types of cases, a high overall rate of disposal

may mask the fact that some cases such are stagnating for long periods within such a

Court. Therefore, even if some Courts have a very high rate of disposal, the High Court

should not re-allocate judicial resources in those Courts, without first determining how

current their case loads are.

Relatedly, even though the general picture that emerges lets system know how much

extra judicial time is required to clear up the backlog and prevent the system from getting

backlogged in the near future, the Rate of Disposal Method does not tell anything about

how judicial time and effort should be spent so as to cater to the needs of the socially and

legally marginalized who are often likely to need more judicial resources in order to meet

their basic legal needs. The method does not provide a way to tailor judicial resource

allocation based on the different needs of different groups. It treats all cases as similar

from the point of view of delay reduction regardless of the nature of the right being

asserted or the person making the assertion. Therefore, High Courts should provide

guidelines to Subordinate Courts to ensure that older or more complex or more priority

cases (for example, those relating to sexual violence) do not stagnate in the system
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Finally, even if judges of a particular category are disposing of cases at a high rate, this

indicates nothing about the quality of decision-making of such judges. The focus of the

method is on the quantitative output without compromising the current qualitative

standard. However, there might be trade-offs involved between the quantity and the

quality of decision-making that the model does not take into account. If some judges are

actually compromising on the quality of decision-making and are thus being able to

dispose of more cases, the model will recommend a lesser number of additional judges,

compared to the additional judges that would be required to dispose of the same number

of cases in a more qualitatively sound manner. The Commission, therefore, recommends

that in allocating the additional judicial resources, High Courts should pay heed to the

quality of decision making in the Courts concerned.

v) Timely filling of vacancies; increase in age of retirement of the Subordinate

Judiciary:

Most High Courts have a high vacancy in Subordinate Courts. Additionally, every

year many vacancies are created through retirement. It takes time to select and

train new judges to replace the retiring ones. In the meantime, the backlog piles

up. To deal with this concern, the Commission recommends that in addition to

recruiting new judges, the age of retirement of subordinate judges be raised to 62

in order to meet the need for a large number of adequately trained judicial

officers. The benefit of increase in the retirement age can be made available to

judicial officers in terms of the directions of the Supreme Court in All India

Judges’ Association v. Union of India.35

35
Supra Note 6
 P a g e | 62

vi) Need for system wide judicial reforms: From a litigant’s point of view, what

matters is not just the timely disposal of his/her case at the trial Court level, but at

all levels of the judiciary. Therefore, judicial reform targeted at delay reduction is

required not only in the trial Court, but throughout the judicial system. In

particular,

a. If the number of judges in the trial Courts increases significantly the number of

cases being disposed of by the trial Courts will rise sharply. The total number of

cases being appealed to the High Courts will also increase. The case load of High

Courts will, therefore, increase. If a corresponding increase is not made in the

judge strength at the High Court level, the system as a whole is likely to remain

backlogged. Data obtained from the Supreme Court publication Court News

shows that High Courts are already backlogged and are not being able to keep

pace with new filings. The recent annual data from Court News is for the time

period 01.10.2011 to 30.9.2012. In this time period, though 1909543 fresh

institutions were made in High Courts, only 1764607 matters were disposed of.

The backlog, therefore, increased by 144936. On average, in this time period,

High Court judges disposed of 2821.07 cases per judge. As of 30.9.2012,

4407861 matters were pending before all the High Courts. At the current rate of

disposal, High Courts require an additional 56 judges to breakeven and an

additional 942 judges to clear the backlog. It is relevant to note here that the

sanctioned strength of the High Courts is 895. As on 31.12.2012, 31.4% of these

positions were vacant. Therefore, there is already a massive shortage of judges in

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the High Courts. The increase of judge strength in the Lower Judiciary is likely to

further exacerbate the problem.

b. Without adequate infrastructure or support staff, an increase in judge strength

will not be effective as a delay reduction strategy. A systemic perspective,

encompassing all levels of the judicial hierarchy, is, therefore, needed for

meaningful judicial reform.

c. Other approaches like encouraging Alternative Dispute Resolution methods,

where appropriate, can divert cases outside the Court system and lead to an

overall reduction in pendency in the judicial system. Therefore, a piecemeal

approach to delay reduction should be eschewed in favour of a systemic

perspective.

SUGGESTIONS AND CONCLUSION

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In conclusion, it would not be wrong to say that at general level and in nutshell, the

present report in a way deals with the issue of arrears and delay and problem of judicial

(wo)manpower planning - a problem that for quite many years remained ignored.

Undermining this, the Law Commission, in its 120th Report: “Manpower Planning in

Judiciary: A Blue Print” had observed, “The Commission was of the view that the

question of judicial manpower planning had generally been ignored in India’s planned

development. The developing science of manpower planning has not attracted the

attention of policy opinion makers in the field of administration of justice in India. All

reorganization proposals are basically patch work, ad-hoc, unsystematic solutions to the

problem”. Importantly, the report, while confessing its limitations and inability said:

“Commission itself is in no position, given the fact of its present structure, to provide this

kind of technical analysis only on which sound programme of change can be envisaged.

Of course, the Commission has done the next best thing and elicited extensive opinion of

those knowledgeable in the field and the general public. But we must admit that, all said

and done, this is a very poor substitute for sound scientific analysis.” The Commission,

thus, while being expressly conscious of limitations inherent in suggesting any scientific

method to deal with problem of arrears and delay relied on the judge population ratio

method as a way for judicial manpower planning. In making such suggestion, the

Commission was inspired by prevalence of such method in few other countries. The

Commission in its report recommended that there was strong justification to increase the

then existing ratio from 10.5 judges per million to at least 50 judges per million of Indian

population. Thus, it is primarily because of non-availability of data and their scientific

analysis, that the Commission simply adopted the simple approach of JudgePopulation
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Ratio. In fact, the report had no occasion to analyse strengths, weaknesses and relevance

of adopting Judge-Population Ratio method in Indian context especially the context that

has its own peculiarities different in many respects from the systems where Judge-

Population Ratio method prevail. No doubt, in recent years, the issue of arrears and delay

and problem of Judicial (wo)man power planning has attracted attention of almost all

major stakeholders including the judiciary, executive, media, policy makers, and public

in general. However, despite this spurt of rising attention, it is largely due to the dearth of

any uniform and scientific approach to data collection and its analysis that arriving at

more scientific and futuristic suggestions with regard to judicial (wo)manpower planning

to deal with issue of arrears and delay still remains a challenge. However, the present

report, while fully realises the frustration expressed by the Commission and consequent

failure in making deeper analysis of the problem when submitting 120th Report, is an

attempt to deal with the problem somewhat more analytically and scientifically. As the

Commission, in the process of preparing the present report and response submitted to the

Hon’ble Supreme Court adopted every possible venue and opportunity that could be

thought of for collecting data including through questionnaires and personal interviews

and subjecting information thus collected to rigorous analysis adopting various tools of

data analysis available in the domain of research methodology.

Although there is no clear scientific process known till date which can calculate the

exact amount of judges required in our country, till such system is evolved what we can

do fill up the vacancies which are there in the judicial system and try to take small steps

to tackle various problems caused due to it. Some of the steps can be-
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1. Expanding the Supreme Court with the best high court judges. Expand the high court’s

with the best session’s court judges. Expand the sessions courts with the best lawyers.

Increase the number of national law schools to get even more lawyers into the system.

2. Raise the number of private law colleges and get in foreign legal firms if necessary.

3. Keep courts open 365 days a year.

4. A committee to counter stalling tactics.

5. Treat judicial appointments like any other government post. The citizens of India elect

MPs and MLAs to represent them. The MPs and MLAs of the party/coalition that has a

majority in the legislature forms the government. Elected governments appoint senior

officials. But in the case of the judiciary, judges appoint themselves. Where in the world

does that happen? The US president is free to appoint anyone to the US Supreme Court.

Such a system has served the US well. There are many vacancies which are currently left

unfilled in India as a result of the executive-judiciary tussle. There is need to treat judicial

appointments like those to any other government post and ensure that vacancies in the

judiciary is filled promptly.

6. Non-acceptance of flippant cases. If you are a powerful citizen with a lawyer with good

connections, then you can get any kind of cases admitted in court, which may, however,

be thrown out at a later stage leading to a lot of time being wasted. Including more

women in Indian judicial system.

7. More fast track courts, e-courts, conciliation, mediation centers should be introduced.

All these small steps will ultimately lead to expansion of judiciary and proper

implementation of laws. It will also lead to decrease in pendency of cases and decrease in

work load of judges ultimately.

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RECOMMENDATIONS
 P a g e | 68

In view of the circumstances mentioned above and the fact that rising court cases in India

is really an issue to be addressed on war footing basis, there is an urgent need to take

following measures immediately:-

 First of all, fill in all the vacancies in the Supreme Court, the High Courts, and also in the

subordinate courts through an specially launched selection and recruitment drive.

 The Governments must make additional budgetary provisions to improve upon the

existing judicial infrastructure in their respective states. Not only the number of court

rooms is to be increased, but the existing one also requires a makeover.

 To increase the court fees applicable to the civil cases, and all the revenue thus generated,

must be spent on improving the judicial infrastructure alone.

 Judges may be asked to sit beyond normal office hours (6pm to 8pm). But the State

Government must make the budgetary provisions to pay incentives to the judges as well

as to the office staff staying beyond normal office hours.

 The recommendations of the collegiums, must reach to the respective governments within

a time frame. Governments must also clear the files of the appointments quickly.

 To cut vacations of the courts. Earlier it was eight weeks in a year which was later cut by

one week. Keeping in mind a huge number of pending cases, the court vacations should

be reduced to four to six weeks.

 The Government and the Judiciary, instead of resorting to the blame game, should work

together to iron out the differences and to find quick and permanent solutions to these

problems.
 P a g e | 69

 Last but not the least the, Government must think over passing such a deterrent

Legislations, that number of criminal cases go down drastically. We are a Democratic

Republic and cannot subject our citizens to the kind of laws prevalent in Islamic

countries, but still there is a lot of room for plugging the loopholes by passing the

stringent legislations, at least for the heinous crimes. There is also a scope of around five

to-ten-fold increase in the amount of fines and securities required at the time of granting

bails.

It is a well known fact that there are a large number of vacancies in Supreme Court, High Courts

and Lower Courts as well. Moreover, there is also the problem of judicial infrastructure i.e.

scarcity of courtrooms. There is a blame game going on between the Government of India and

the Judiciary where the one side is proposing something and other side is rejecting it. Therefore,

the need of the hour is to keep respective egos aside and take some concrete steps to reduce the

number of cases. To start with, first of all, fill in all the vacancies in the Supreme Court, the High

Courts, and also in the subordinate courts through a specially launched selection and recruitment

drive. The Governments must make additional budgetary provisions to improve upon the

existing judicial infrastructure in their respective states. To increase the court fees applicable to

the civil cases. Judges may be asked to sit beyond normal office hours (6pm to 8pm). To reduce

number of vacations of the courts. Government must think over passing such a deterrent

Legislations that number of cases, especially criminal ones goes down drastically.

Bibliography
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Acts:
 The Constitution of India, 1950

 Negotiable Instruments Act, 1881

Reports:
 Law Commission of India, 120th Report on Manpower Planning in Judiciary: A

Blueprint (1987)

 Law Commission of India, 127th Report on Resource Allocation for

Infrastructural services in Judicial Administration-(A Continuum of the Report on

Manpower Planning in Judiciary: A Blueprint) (June 1988)

 Law Commission of India, 245th Report on Arrears and Backlog: Creating

Additional Judicial (wo)manpower (July, 2014)

Journals:
 C.L. Aggarwal,“Laws Delay and Acccumlation of arrears in the High Courts.”

Vol. 7(1) 41 JBCI (1978)

 C.J. Bharucha: Speech Delivered in Kerala organized by the Bar Council of India

and Bar Council of Kerala Published in India Bar Review Vol XX VIII (4) 2001

Websites:
 P a g e | 71

 http://pib.nic.in

 https://frontline.thehindu.com

 https://barandbench.com

 https://www.thewire.in

 https://www.sci.gov.in

 http://njdg.ecourts.gov.in

 https://www.livelaw.in

 https://www.thehindubusinessline.com

 https://www.livemint.com

 https://economictimes.indiatimes.com

 http://digitalcommons.law.yale.edu

 http://dakshindia.org

 https://www.bbc.com

 https://www.nawj.org