Report No. 245

4. The Rate of Disposal Method

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.

It may not be out of context to briefly explain what constitutes "Rate of Disposal Method". 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.30

30. 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.

It has to be noted that in the past the Law Commission and other Committees have suggested that since the judges required to dispose of the backlog are needed only till the backlog is cleared, therefore, short-term ad hoc appointments be made from amongst retired judges, for the purpose of clearing backlog.31 Most recently, the National Vision Statement and Action Plan presented by the Law Minister in October 2009, also recommended that retired judges and eminent lawyers may be appointed as ad hoc judges for a period of one year for dealing with arrears.32

However, as previous experiences with appointing ad hoc judges has shown, there are serious concerns about such appointments, especially the lack of accountability in the functioning and performance of ad-hoc judges, since these are short term appointments.

31. See e.g., Law Commission of India, 77th Report on Delay and Arrears in Trial Courts 35 (1978), at ¶ 9.13. A similar method has been recommended by in Annexure I of the Justice M J Rao Committee on Judicial Impact Assessment, for calculating the adequate Judge strength. Justice M.J. Rao Report, vol.2, (http://doj.gov.in/?q=node/121) Report of the Task Force on Judicial Impact Assessment, p. 49-52.

The Justice Malimath Committee recommended the bifurcation of additional judicial strength into permanent judges required to dispose of current filings, and additional ad-hoc judges to deal with arrears. Malimath Committee Report, p. 164. See also Parliamentary Standing Committee on Home Affair, 85th Report on Law's Delays: Arrears in Courts ¶ 45 (2001) (advocating appointing ad hoc Judges to clear pendency within a three year time frame).

See further 14th Law Commission Report, p. 148 (engaging in a similar analysis, the Law Commission recommended the creation of temporary additional Courts for dealing with cases over a year old, and augmenting the strength of the permanent judiciary so that disposals and institutions break even, and there is no new creation of arrears).

32. ¶ 3.2 and ¶ 6.1 (i) Vision Statement presented by the Law Minister to the Chief Justice of India at the National Consultation for Strengthening the Judiciary towards Reducing Pendency and Delays, October 2009.

Further, even if ad hoc judges were to be appointed, additional infrastructure for these Courts would have to be created. Though the National Vision Statement recommended adopting a shift system to overcome the infrastructure problem,33 this proposal has been resisted by members of the Bar since it significantly increases their working hours.34

33. ¶ 6.1, id.

34. See Minutes of the Meeting of the Law/Home Secretaries and Finance Secretaries of States and Registrar Generals of High Courts on May 31, 2013

Significantly, the Central Government, the Conference of Chief Justices and Chief Ministers, and the Advisory Council of the National Mission for Justice Delivery and Legal Reforms, have all proposed the doubling of the current judge strength.35 As per the information supplied by the Department of Justice to the Law Commission indicate that consultations are currently underway between the Central Government, the State Governments, and the High Courts, on formulating memoranda to be presented to the 14th Finance Commission regarding funds required for doubling the judge strength.

The Commission recommends that since this decision to double judge strength has already been taken, the judges required for disposing of the backlog can be drawn from the new recruitment itself. Once backlog is cleared, these judges can be deployed for disposing of freshly instituted cases, which will also increase over time.

35. A resolution on doubling the judge strength was passed at the Second Meeting of the Advisory Council of the National Mission for Justice Delivery and Legal Reforms, chaired by the Union Law Minister, on May 15, 2012. The resolution stated that, "The number of Judges/Courts may be increased to double the present number. But this may be done gradually in a period of 5 years."

At the Chief Justices' and Chief Ministers' Conference, held on April 5-6, 2013, it was resolved that, "[i]n order to narrow down judge-population ratio, the Chief Justices will take requisite steps for creation of new posts of Judicial Officers at all levels with support staff and requisite infrastructure in terms of the judgments of the Hon'ble Supreme Court in the cases of All India Judges' Associations case (2002) 4 S.C.C. 247], Brij Mohan Lal v. Union of India, (2012) 6 S.C.C. 502 and letter dated 21st February, 2013, written by Hon'ble the Chief Justice of India to Hon'ble the Prime Minister of India, in order to provide effective, efficient and efficacious dispensation of justice."

The decision to double the judge-population ratio was supported by the Prime Minister and the Law Minister in their speeches at the conference. Both assured that the Central Government would assist in securing additional funding for this purpose. See Speech by Prime Minister Dr. Manmohan Singh, at the Conference of Chief Justices and Chief Ministers, at http://pib.nic.in/newsite/erelease.aspx?relid=94523; Speech by Law Minister Dr. Ashwini Kumar, at the Conference of Chief Justices and Chief Ministers, April 7, 2013, at http://pib.nic.in/newsite/erelease.aspx?relid=51882

At a meeting of the Law/Home Secretaries and Finance Secretaries of States and Registrar Generals of High Courts on May 31, 2013 Shri Anil Gulati, Joint Secretary and Mission Director, Department of Justice, stated that the resolution of the Advisory Council of the National Mission for Justice Delivery and Legal Reforms, had been endorsed by the Advisory Committee of the National Court Management Systems, and by the Chief Justice of India in his letter addressed to the Chief Justices of High Courts in February, 2013.

The representatives of the State Governments and High Courts were asked to draw up proposals regarding the financial implications of the resolution so that the same could be presented to the 14th Finance Commission for provision of adequate funds.

Given the vast resources required to double the existing judge strength, the time that it will take to complete selection and training processes, and the funds and time required to create adequate infrastructure, the Commission is of the opinion that the Rate of Disposal Method should be used to indicate how many judges should be appointed on a priority basis for the interim period.

Tables I- XII below, provide data for how many judges need to be hired to dispose of the backlog in one, two, or three years. It is pertinent to note that in R.L. Gupta v. Union of India, AIR 1988 SC 968, the Supreme Court had directed that all arrears in the Delhi Subordinate Judiciary should be disposed of within a period of 2 years.

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.