The Supreme Court accounts for only a small share of the pendency. What is however odd is that 10 years ago, the Supreme Court was able to reduce the pendency to a shade less than 20,000 and at that point, this was lauded as a demonstrated success of better case management and IT usage. In 1950, the pendency in the Supreme Court was 771 cases. By 1978, pendency was 23,092 and in 1983 pendency crossed 1,00,000. On 31 December 1991, the number of cases pending before the Supreme Court was 1,34,221. Then this number was substantially reduced to 19,806 in 1998 and it was 21,715 at the end of 2001. Since those days of reduction, the pendency has increased by between 13% and 15% every year and has more than doubled. Compared to the all-India pendency figures, even 50,000 is a small number. But surely some explanation should have been forthcoming about what has now gone wrong with the Supreme Court. In 2007, the Supreme Court disposed of 61,957 cases.

This is the right place to draw a possible distinction between the terms pendency, arrears, delay and backlog, often used synonymously. Pendency simply means the total number of cases in the court system. High levels of pendency indicate faith in the judicial system. Arrears are an excess of new cases over disposed cases. Arrears contribute to delays. Delays are old cases that aren?t disposed of. The word backlog is sometimes used in the sense of pendency and sometimes in the sense of delays. Given these different senses in which these terms are used, perhaps one should eventually transit to a term like court congestion. This will also be more in conformity with international usage. The total pendency in the court system, excluding other quasi-judicial forums, now amounts to 29.1 million?46,926 in the Supreme Court, 3.7 million in High Courts and 25.4 million in Lower Courts.

High Courts

As was mentioned in the first part of this series, the High Courts enjoy civil as well as criminal, ordinary as well as extraordinary, and general as well as special, jurisdiction. The source for the jurisdiction is the Constitution of India and various statutes, along with other instruments constituting the High Courts. The High Courts enjoy extraordinary jurisdiction under Articles 226 and 227 of the Constitution, enabling them to issue prerogative writs, such as habeas corpus, mandamus, prohibition and certiorari. Being courts of record, they have the power to punish for contempt of High Courts, as well as contempt of subordinate courts.

At present, there are 21 High Courts: Allahabad (with a bench in Lucknow), Andhra Pradesh (seat in Hyderabad), Calcutta, Bombay (with benches in Aurangabad, Panaji and Nagpur), Jammu & Kashmir (seats in Jammu and Srinagar), Madras, Jharkhand (seat in Ranchi), Chhattisgarh (seat in Bilaspur), Gauhati (benches in Aizwal, Kohima and Imphal and circuit benches in Agartala and Shillong), Patna, Sikkim (seat in Gangtok), Rajasthan (seat in Jodhpur, with a bench in Jaipur), Madhya Pradesh (seat in Jabalpur, with benches in Gwalior and Indore), Delhi, Gujarat (seat in Ahmedabad), Himachal Pradesh (seat in Shimla), Karnataka (seat in Bangalore), Orissa (seat in Cuttack), Kerala (seat in Ernakulam), Punjab and Haryana (seat in Chandigarh) and Uttaranchal (seat in Nainital).

The pendency in High Courts was 1.48 million in 1987. Pendency increased to 2.651 million in January 1994, 2.981 million in January 1996, 3.181 million in January 1998, 3.365 million in January 2000, 3.557 million in January 2001 and 3.743 million in December 2007.

Allahabad High Court has the dubious distinction of accounting for 22% of the pendency, followed by Madras High Court (11.5%), Bombay High Court (10%), Calcutta High Court (7.5%), Punjab and Haryana High Court (7%), Orissa High Court (6.2%) and Rajasthan High Court (5.7%). The High Courts of Allahabad, Madras, Bombay, Calcutta and Punjab & Haryana account for 60% of the pendency in High Courts. If one adds Rajasthan, Orissa, Madhya Pradesh and Kerala, one accounts for 71% of the pendency. This suggests a targeted focus on specific High Courts. Civil cases account for the bulk of the pendency in High Courts. Criminal cases account for between 18 and 19% of the pendency. The High Court pendency problem is fundamentally a civil one. This is not to deny that there is some criminal case pendency in High Courts. But this is concentrated in Allahabad, Patna, Madras, Rajasthan, Delhi, Jharkhand and Madhya Pradesh, with Allahabad alone accounting for 30%. Judged in terms of pendency alone, the targeted criminal case focus should be on Allahabad, Patna, Madras and Delhi.

However, pendency is a stock. Arrears (new cases minus disposed cases) are flows and better indicators of change. The visual graphs above indicate the incremental change in High Courts for the period 2004 to 2008. We pick Delhi and Bombay High Courts. So far as arrears are concerned, there should be a concern about criminal cases in Rajasthan, Jharkhand and MP. Judged in terms of civil case arrears, the High Courts to worry about are Madras, Allahabad, Orissa, Calcutta, Punjab & Haryana, Rajasthan and Bombay. These account for 75% of the arrears in civil cases in the case of High Courts.

If one splices the pendency (stock) and arrears (flow) identifications together, one zeroes in on the High Courts of Allahabad (criminal and civil), Madras (criminal and civil), Bombay (civil), Calcutta (civil), Patna (criminal), Punjab & Haryana (civil), Rajasthan (criminal and civil), Delhi (criminal and civil), Jharkhand (criminal), MP (criminal) and Orissa (civil). While these are major courts, accounting for high shares of both pendency and arrears, it is not the case that every High Court has a pendency or arrears problem. While there are fluctuations sometimes, High Courts like Andhra, Gujarat, Kerala, MP and Uttaranchal have been able to reduce pendency. But one also has experiences like Allahabad, Bombay, Madras, Himachal, Orissa, Patna, Rajasthan and Jharkhand.

Before leaving High Courts, one should say a few words about old cases, often used anecdotally to drive home the point that the speed of dispute resolution in India is inordinately slow. Probably because there were question marks on the quality of data, figures on age-wise classification of cases are no longer available in the public domain. There is a dated figure for 31st December 2005, to the effect that 531,477 cases pending in High Courts were more than 10-years old. There is an obvious argument for setting up special benches for hearing cases that are more than 3 years old.

Lower Courts

In a reversal of the trend in High Courts, 71.3% of the pendency in Lower Courts is of criminal cases, not civil ones. 70% of the pendency in Lower Courts is concentrated in UP, Maharashtra, Gujarat, West Bengal, Bihar, Karnataka and Rajasthan. If one uses the flow of arrears (excess of institutions over disposals) rather than the stock of pendency to identify regions that face a problem, criminal cases constitute a problem in UP, Maharashtra, Bihar, Orissa, Tamil Nadu, Delhi and West Bengal. 26% of arrears are in UP alone. With a focus on civil case arrears, one ends up identifying Kerala, Tamil Nadu, UP, Rajasthan, Bihar, Gujarat, Punjab and Haryana. 60% of civil case arrears are in Kerala. A region-specific targeted intervention should be based on Tamil Nadu (civil and criminal), UP (civil and criminal), Rajasthan (civil and criminal), Punjab (civil), Haryana (civil), Orissa (criminal), West Bengal (criminal), Kerala (civil), Bihar (civil and criminal), Gujarat (civil), Delhi (criminal) and Maharashtra (criminal).

A comment has already been made about age-specific data no longer being available. Data from the late-1990s show that 31% of civil cases in Lower Courts are more than 3-years old and a comparable figure is 25% for criminal cases. On an average, across High Courts and Lower Courts, probably around 15% of cases are more than 3-years old and around 0.5% are more than 10-years old. Though High Courts, and their jurisdictions, vary widely, on an average, such old cases number between 7,000 and 8,000 for every High Court jurisdiction.

The author is a noted economist