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Report No. 245

Chapter II

Defining Key Concepts: Pendency, Delay, Arrears, and Backlog

There is no single or clear understanding of when a case should be counted as delayed. Often, terms like "delay," "pendency," "arrears," and "backlog" are used interchangeably. This leads to confusion. To avoid this confusion and for the sake of clarity, these terms may be understood as follows:

a. Pendency: All cases instituted but not disposed of, regardless of when the case was instituted.

b. Delay: A case that has been in the Court/judicial system for longer than the normal time that it should take for a case of that type to be disposed of.

c. Arrears: Some delayed cases might be in the system for longer than the normal time, for valid reasons. Those cases that show unwarranted delay will be 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. This figure represents the accumulation of cases in the system due to the system's inability to dispose of as many cases as are being filed.

Therefore, as is evident, defining terms like delay and arrears require computing "normal" case processing time standards. How should the normal time frame be determined? It may be noted that since the Supreme Court had directed the Law Commission to recommend a "rational and scientific definition of "arrears" and delay," the Commission clarified to the Hon'ble Court at the outset that there exists no single "objective" standard or mathematical formula by reference to which "normal" case processing time and hence delay can be defined or calculated.

However, Commission is of the view that various methods, drawing on statistics, social science research techniques and experiential inputs can help make "rational" determination of "normal" case disposal times, and hence of delay. Based on a survey of various jurisdictions and previous reform efforts in India it is revealed that two approaches, and combinations thereof, are generally used in computing rational timeliness requirements.

The first approach, which can be called the Practice Assessment Approach, involves studying the patterns of current filing, disposal, case-length and pendency. A comparative analysis of these patterns inter se and between jurisdictions, can help policy makers determine whether a particular Court takes more or less time compared to either a system-wide average, or the median case in the system. This analysis does not tell the policy maker whether a particular Court or type of case is delayed.

However, it does allow for a relative assessment of which Courts are taking longer than others, such that they may require targeted intervention in terms of greater allocation of resources, etc.2 When a Court is a complete outlier in terms of its case processing time, the policy maker (or superior Court) may be able to draw an inference that cases in that Court are unacceptably delayed and are, therefore, in arrear.

This relative assessment approach was followed by the Canadian Supreme Court in making a determination that an Ontario criminal Court was unacceptably delayed, such that the right to speedy trial of criminal defendants was being violated. See R. v. Askov, [1990] 2 S.C.R. 1199 (Canada Sup. Ct).

Further, while current practice assessments are inadequate for defining delay, they can reveal when and where (in which Court and in which types of cases) backlog is being created, so that targeted intervention is possible to address the issue. In the absence of other measures, this is the approach that the Commission has adopted in examining the question of adequate judicial strength for the Subordinate Judiciary.

2. See, e.g., Justice M.J. Rao Committee Report, Judicial Impact Assessment in India, vol. 2, p. 46 (2008) (comparing Delhi and Australian disposal rates). Advocating a comparative approach based on current patterns of filing an disposal, the Approach Paper attached as Annexure I to the Committee's Report suggested that, "based on data for the previous couple of years there should be a data base of disposal rate [per judge] for every case type.

It should be monitored that every judge is within a band of 10% of this median value within his/her case type. If found otherwise, the reasons behind less disposal rate should be probed and if the reasons are unsatisfactory, then remedial measures needs to be designed. Moreover, if the clearance index for any particular judge falls below 0.90 for three consecutive months or is cumulatively below 0.90 compared to the previous quarter, then the disposal rate should be checked, and whether it conforms to the band of 10% should be verified." See, id. at p. 52-53.

Another approach, which may be called the Normative Assessment Approach, is to fix time standards for the disposal of cases. Cases that are disposed of within such time are not delayed; cases beyond such time are delayed; cases which exhibit unwarranted delay are in arrears.

One of the means by which such standard setting can take place in a rigorous and rational manner is to begin by studying the current patterns of filing, disposal, pendency, length, etc. Based on this study, the policy maker can determine the average or median time taken for processing various types of cases. Studies based on interviews with stakeholders, examination of the life cycle of sample cases, etc, can then be undertaken to understand whether these time frames reflect an optimal standard for timely disposal.

A committee of experts, drawn from persons with extensive experiential knowledge of the system, can then review the current patterns to determine optimality, keeping in mind resource constraints, Court cultures, system goals and constitutional and statutory requirements.4 The Normative Approach,therefore, relies on an amalgam of past and current statistics, social science research techniques and experiential inputs to make a "rational" determination of "normal" case disposal times, and hence of delay.

4. This approach is often followed in other jurisdictions. See, e.g., National Center for State Courts, Model Time Standards for State Trial Courts (USA, 2011); Trial within a Reasonable Time: a Working Paper Prepared for the Law Reform Commission of Canada, (Department of Justice, Canada, 1994).

One method of defining delay through the Normative Assessment Approach is by determining the normal time frame within which cases of a particular type should be processed through a Court. If a case takes longer than this time frame, then the case is delayed. Time frames can be in the nature of mandatory time limits, or they can provide general guidelines that are normally to be followed, but can be departed from in exceptional circumstances.

Countries like the US have limited mandatory time frames, for example under the US Speedy Trial Act, 1974.5 However, India does not have general statutory time limits comparable to the US Speedy Trial Act. While the Civil Procedure Code, and the Criminal Procedure Code, have time frames for completing certain stages of the case, these statutes generally do not prescribe time limits within which the overall case should be completed, or each step in the trial should be concluded.6

5. The U.S. Speedy Trial Act, 1974 provides for time limits which, subject to certain exceptions (e.g., 18 U.S.C. § 3161(h)(7)(A) & (B)) and exclusions (e.g., 18 U.S.C. § 3161(h)(1.- (8)) have to be followed. Any deviation can result in the imposition of prescribed sanctions and consequences. See e.g., 18 U.S.C. § 3162.

For example, indictment (corresponding to framing of charges under the Indian CrPC) must take place within 30 days (extendable in certain cases to 60 days) of arrest or service of summons. 18 U.S.C. § 3161(b). Trial should commence within 70 days after either (a) indictment, or (b) the date of the defendant's initial appearance before the Court, whichever is later. 18 U.S.C. § 3161(c). The trial of a defendant held in pretrial detention must also commence within ninety days of arrest. 18 U.S.C. § 3164(b).

6. Examples of instances where time frames are prescribed include Order VIII, Rule 1, Civil Procedure Code, which prescribes a maximum time limit of 90 days from service of summons for filing of written statements. Similarly, Section 167 of the CrPC provides that the chargesheet should be filed within 60 or 90 days (depending on the type of case) of arrest of the accused.

Section 309 Cr.PC. provides a general guidance that hearings should be conducted as expeditiously as possible and once examination of witnesses has commenced, hearings should be conducted on a day to day basis. However, no time frames have been set for the overall conduct of the trial, except in cases covered under Sections 376 to 376D, which should, as far as possible, be completed within 2 month from the date of commencement of examination of witnesses.

On the judicial side, setting of mandatory time limits was attempted by the Supreme Court in a series of cases. Common Cause v. Union of India (1996) 4 SCC 33; Common Cause (II), (1996) 6 SCC 775; Raj Deo Sharma v. State of Bihar, (1998) 7 SCC 507; Raj Deo Sharma (II), (1999) 7 SCC 604. However, in 2002 a seven judge bench of the Court in P. Ramchandra Rao v. State of Karnataka, (2002) 4 SCC 578 held that mandatory time limits could not be prescribed by the Court.9

Though the Court was not in favour of mandatory time limits, it did not find problematic the use of time frames as guidelines for the Court. The prescription of such non-binding, directory guidelines has been a common means of defining normal time frames and evaluating delay, both in India and abroad.10

In India, previous Law Commissions and various Governmental Committees have suggested various directory time frames both as guidelines to Courts for the timely disposal of cases, and as standards by which delay in the system can be measured.11 However, all these suggestions are based on ad-hoc prescriptions rather than grounded in empirical analysis and observation. And thus the concern raised by the Hon'ble Supreme Court in Imtiyaz Ahmad, viz., of providing "a rationale and scientific definition of 'arrears' and 'delay' demands deeper study and rigorosity in terms of data.

9. Ibid. As per the Court It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The time-limits or bars of limitation prescribed in the several directions made in Common Cause (I), Raj Deo Sharma (I) and Raj Deo Sharma (II) could not have been so prescribed or drawn and are not good law. The criminal Courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause Case (I), Raj Deo Sharma case (I) and (II).

At the most the periods of time prescribed in those decisions can be taken by the Courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration the several relevant factors as pointed out in A.R. Antulay's case and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted.

Such time-limits cannot and will not by themselves be treated by any Court as a bar to further continuance of the trial or proceedings and as mandatorily obliging the Court to terminate the same and acquit or discharge the accused.

Arrears and Backing - Creating Additional Judicial (wo)manpower Back

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