Pending cases cross five crore milestone

During 2023, India became the country with the highest population in the world and will probably remain so for the next century and beyond, unless it breaks up into smaller nations. India having survived in one piece, despite its incredible diversity on every dimension, be it language, religion, cuisine, race, ethnicity, culture, and creed, is itself a miracle of the modern world. The Soviet Union broke up into ten countries. Canada almost broke up in the 1960’s, due the two-language diversity, French and English. Our own twin born on the same day, split into two.

One fourth of all cases with High Courts were pending for more than ten years

So, India’s survival and progress as a unified nation State for seventy-five years is a major reason to celebrate. Should we also celebrate the fact that we are also the most populous nation? That is a double-edged sword. For a nation’s development the most crucial resource is human capital. That is people with skills, education, drive, entrepreneurship, and opportunities. But the same demographic dividend can become a disaster if no investment is done in enhancing human capital and there are no productive opportunities for the young.  This is the economic challenge.

India’s economy also crossed the 3 trillion-dollar mark four years ago. It has been among the fastest growing major economies, and hence racing ahead. In 2023 it pipped the United Kingdom to become the fifth largest economy in the world, and is expected to reach rank 3 in the coming years, as boldly asserted by our Prime Minister in his speech before the U.S. Congress last month.  The fast growth will soon lead us to the major milestone of 5 trillion dollars.

Nearly 4 of the 5 lakh people who are thus incarcerated are undertrials, i.e. held without a conviction

But there is another milestone that we crossed last month, of which we cannot feel proud. India now has more than 5 crore pending cases across all courts in the country. Thanks to digitalisation, we can see a running ticker on the e-courts website.  As on July 23, the pendency was 6.06 million cases in High Courts and 44.3 million cases in District and Taluka courts.  Three years ago, in a speech at NALSAR University, the Chief Justice said that total pending cases 32.45 million.  That implies a growth of nearly 18 percent every year.

The economy is growing at 6 percent, the population is growing at 0.8 percent, but the backlog of the case load is growing at 18 percent.  The aggregate case load data can be broken up into how many cases are pending for less than one year, how many between 1 to 3 years and so on.  A whopping 25 percent of one fourth of all cases are pending for more than five years.  As per a 2018 report from the PRS Legislative Research, one fourth of all cases with High Courts were pending for more than ten years. That aggregate number is more than one million. Allahabad High Court had the highest pendency of more than 7 lakh cases. There is now detailed and extensive data in digital form with the National Judicial Data Grid. So, one can slice and dice the data and gain many such insights.

India’s ease of doing business record is tarnished because of the shoddy speed of dispute resolution

There is delay in processing both civil and criminal cases.  In the lower judiciary between 70 to 80 percent of the pending cases are criminal ones, but the ratio becomes reverse in the higher courts.  One of the pernicious effects of pendency is on those who are in prison and are called “undertrials”.  These are all technically innocent people since they have not been proven guilty. Nearly 4 of the 5 lakh people who are thus incarcerated are undertrials, i.e. held without a conviction.  Their liberty has been denied since the judicial system is unable to process their cases. In an even more bizarre twist, there are people who have been in prison for a duration longer than the time they would have to serve, had they been convicted as guilty. 

These are extreme examples and a blot on our democracy. But even the large pendency of all others is a black mark. Justice delayed is justice denied. The average time taken to dispose cases in India is 30 months as compared to 6 months in the European Union, as per the Economic Survey of 2019, published by the Union Finance Ministry.  India’s ease of doing business record is tarnished because of the shoddy speed of dispute resolution.

So, what are the reasons for the increasing backlog?  The first reason is the inadequate number of judicial officers. Across the board there are an average of 20 percent unfilled vacancies, and these are much more in the higher judiciary. Just filling these posts can close the gap between new case load and disposal rate of existing case load. The second reason sounds silly but is serious and was quoted by the Chief Justice of India. In a speech last December, he said that 6.3 million cases have been considered delayed due to the non-availability of counsel.  And another 1.4 million cases are delayed as they await some kind of document or record.  This is unacceptable inefficiency, especially when the whole system is being made digital.

The third reason for piling up of cases is due to misaligned incentives, especially when a government officer is involved. For instance, if a lower tribunal gives an order against the income tax claims of the government, the officer involved will almost surely appeal even if it is an open and shut case. This is for fear of being accused of corruption or of collusion.  A fourth reason for delay could be the arbitrary discretion in the listing order of cases. There is an impression that the elite can jump queues and get instant hearings while the masses have to wait.

A fifth reason for piling of cases is the absence of arbitration and mediation as a credible first option. In fact, in developed countries like USA (which is quite litigatious), if a criminal case goes to trial, there is a 90 percent chance that the defendant will be found guilty, and that too in quick time. Hence many cases do not go to trial and end up with out of court settlements.  In India thanks often to shoddy preparation, the cases going to trial offer a more than fifty percent of acquittal.  Judicial reform which can speed up the delivery of justice, give meaningful out-of-court settlement options for redress, and also fully use the power of digital and artificial intelligence is the need of the hour.

(Dr. Ajit Ranade is a noted economist)