Pending Cases in India Have Crossed 5 Crore. Judicial Vacancies, Not Judges' Holidays, Are the Reason
The holiday argument is popular because it is cheap. The arithmetic points somewhere more expensive.
The argument
- Cutting court vacations would add at most a few per cent to judge-days; filling vacancies would add a fifth to a third.
- The backlog is a supply problem — judges, courtrooms, staff — compounded by the government's own appetite for litigation.
- Three measures would do more than any change to the calendar: a binding appointments timeline, a courtroom-building programme and a government litigation policy with teeth.
Every year around this time, when the Supreme Court's winter calendar is published, the argument about judges' holidays returns. It is an easy argument to make and an easy one to applaud: five crore cases are pending, and the judges are on vacation. It is also, on the numbers, almost entirely beside the point. The National Judicial Data Grid now counts more than five crore cases in the district courts, the High Courts and the Supreme Court. If every court in the country gave up every day of vacation and sat on every working day of the government calendar, the increase in judge-days would be a few per cent. The vacancy rate in the district judiciary is about a fifth; in the High Courts it is about 30 per cent. That is where the judge-days are.
The arithmetic
| Measure | Approximate effect on available judge-days |
|---|---|
| Abolish all High Court vacations (about 30 days against 210 sitting days) | + about 14 per cent in the High Courts — but judges write judgments and do administrative work in vacations, so the net gain in hearing time is far smaller |
| Fill High Court vacancies (about 330 of 1,122 posts) | + about 42 per cent on current working strength |
| Fill district judiciary vacancies (about 5,000 of 25,000 posts) | + about 25 per cent on current working strength |
| Reach the Law Commission's 50 judges per million (from about 21) | More than double the present capacity |
The figures are approximate and the comparison is unfair to the holiday argument in one respect: a day gained by filling a vacancy is a full day, while a day gained from vacation is a day taken from the judgment-writing that already happens then. The unfairness runs the other way too. A vacancy in a High Court is not one empty chair; it is a bench that does not sit, a roster that is redistributed to judges already hearing sixty matters a day, and a thousand or more cases a year that are not decided.
Why the holiday argument persists
Because it costs nothing. A vacation can be cut by a resolution; a vacancy can only be filled by the process this newspaper described last week — a High Court recommendation, an Intelligence Bureau report, a government that takes months to forward a file and a collegium that takes months more — and by money. The holiday argument also flatters a view of judges as idle that the data do not support: Indian judges dispose of more cases per head than those of almost any comparable system, and the rising pendency is not a falling disposal rate but an institution rate that disposal cannot catch.
What the backlog is actually made of
- Empty posts. The point above. The PLR Projects timeline for appointments is ignored at every stage, and the district judiciary's recruitment examinations are held irregularly by state public service commissions and High Courts that do not coordinate.
- Empty rooms. Even where judges are appointed, courtrooms are short by several thousand across the district judiciary, and residential accommodation shorter still. The Supreme Court has been monitoring infrastructure for a decade; the states, which pay, have not built.
- The government's appetite. Union and state governments are parties to about half of all pending cases, much of it routine appeals against orders they do not expect to reverse. A National Litigation Policy has been promised since 2010. There is still none.
- Adjournments. Order XVII of the Code of Civil Procedure limits adjournments to three; no court enforces it, and the new criminal code's limits on adjournments are already being read as directory.
- Old cases. A quarter of district court cases are more than five years old. They are the cheapest to dispose — the parties are often dead or reconciled — and the least attended to, because no one is counting.
A vacancy in a High Court is not one empty chair. It is a bench that does not sit.
Harsh Vardhan
What would work
- A binding appointments timeline. Legislate the PLR Projects schedule: a recommendation not acted on by the government within the period is deemed forwarded; a reiterated name not appointed within the period is deemed appointed. The collegium's part of the timeline should bind too.
- Pay for courtrooms through the Finance Commission. States will not build on their own; a centrally funded, centrally monitored programme with a target of one courtroom per sanctioned judge would.
- A litigation policy with a cost. Government appeals filed without a written opinion that the appeal has a reasonable prospect should attract costs against the department, and the data on government litigation should be published department by department.
- Count old cases. A national target for disposal of cases older than five years, tracked on the Data Grid, with the dead ones struck off and the live ones listed first.
- Then, and only then, the calendar. A shorter vacation with judgment-writing days built into the term would be a reasonable reform. It should be the last one argued for, not the first.
The holiday argument will be back next October. The five crore will be larger. The vacancies will be the same, and so will the reason.
How many cases are pending in Indian courts?
More than five crore on the National Judicial Data Grid: over 4.7 crore in the district courts, over 63 lakh in the High Courts and around 85,000 in the Supreme Court. About a quarter of district court cases are more than five years old.
How many judges does India have per million people?
About 21 against sanctioned strength, fewer in post. The Law Commission recommended 50 per million in 1987. About a fifth of district judiciary posts and about 30 per cent of High Court posts are vacant.
How many days a year do Indian courts work?
The Supreme Court about 190 to 200 sitting days, the High Courts about 210 and the district courts about 240 to 250, with judgment-writing and administration outside sitting days.
Who is the biggest litigant in India?
The government — Union and state governments and their agencies are parties to around half of all pending cases. A National Litigation Policy has been proposed since 2010 and never adopted.
Harsh Vardhan reports on legislation, the law ministry and judicial appointments. Read The Counsel's report on High Court vacancies and the collegium deadlock.
Harsh Vardhan
Harsh reports on legislation, the law ministry and judicial appointments.
Opinion pieces reflect the views of their authors and not necessarily those of The Counsel. This article is for general information only and does not constitute legal advice. Readers should consult a qualified lawyer about their own circumstances.