Backlog

What is Backlog (Judicial)

Backlog is generally defined as the ‘accumulation of unfilled orders’. In the Judicial sense, a case is understood to be a backlog, when it is pending before the court for a longer period than the one prescribed. The existence of a backlog usually indicates that courts face challenges regarding their efficiency and timeliness.

Judicial Backlog is used interchangeably with pendency but international experiences suggest that Backlog is essentially a case count that is necessarily determined on the basis of a reference timeframe.

In India, Backlog is understood to have occurred when the pace of incoming cases exceeds the pace of outgoing cases, i.e. when the court's case clearance rate is regularly less than 100 per cent over an extended period of time.

Official Definition

As defined in Official Government Reports

• The 245th report of the Law Commission of India, titled Arrears and Backlog: Creating Additional Judicial (wo)manpower, examines the question of adequate judicial strength, for the subordinate judiciary and adopts the practice assessment approach based on patterns of current filings, disposal, case length, and pendency across all jurisdictions. For the purpose of this report, the law commission did not adopt the normative assessment approach which relies on providing timeframes in the nature of mandatory time limits or general guidelines relating to it. The report defines backlog and distinguishes it from pendency, delay, and arrear.
  • ‘Backlog is therefore defined as a quantum that arises 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.’ Hence, according to the report, the condition of judicial backlog can only arise when cases instituted exceeds cases disposed of in the given time period. According to the report, the quantum of delay and arrear do not directly influence judicial backlog and judicial backlog can be evaded for a given time period if the number of cases disposed exceeds the number of cases instituted.
  • Backlog is distinct from pendency as pendency relates to the total number of undisposed cases and backlog refers to the number of undisposed cases which were instituted in a given time period.
  • Backlog is distinct from delay and arrears as delay and arrears are determined based on the time period of the case in the judicial system. If such time period is longer than the ‘normal time for the case of that type’ it constitutes delay and if such delay is ‘unwarranted and not for valid reasons’, such delay constitutes arrears.

Backlog Creation Rate

• The report also defines Backlog Creation Rate as the ratio of institution to disposal in any given year. If the ratio is greater than 1, this implies that more cases are being instituted than are being disposed of. If the ratio is less than one, then more cases are being disposed of, than are being instituted. A number less than 1, therefore, indicates that the judicial system is able to handle new institutions.

Thus, the Backlog Creation Rate focuses on the number of cases going in and out of the system in a given year and does not take into account the already backlogged cases that carry forward from year to year. In other words, Backlog Creation Rate does not indicate whether the same cases that were filed in a given year were disposed of in that year.

The handling of backlogged cases can be further assessed by Pendency Clearance Time (in years) indicates the amount of time it would take to dispose of all pending cases if no new cases were filed. It is calculated by dividing the pendency at the end of the year by the disposal that year.

Appearance in the official Database

A systematic assessment of the timeframes for cases is fundamental to determining what constitutes a backlog. International practices suggest that timeframes are the essence of determining backlog.

Law Commission Reports

The Law Commission also emphasizes the requirement for case-specific determination of what would amount to a timely disposal of the case. In India, these timeframes are mostly prescribed (on an ad-hoc basis) as statutory time frames for certain stages of cases and as guidelines by the law commission relating to the duration of cases. In India, such timeframes are neither considered nor enforced. The study undertaken by the law commission of India also highlights that data on the duration of cases show variance across jurisdictions and is not enough to undertake a systematic assessment of timeframes. The 230th report on ‘Reforms in the judiciary - some suggestions’ of the Law Commission also suggests that setting time- standards is essential and it will vary for different cases, and also for different courts depending on their disposal capacity.

An indicative list of such timeframes as suggested by the Law Commission

Committee	Case	Time Frame
Law Commission of India, 14th report: Reform of Judicial Administration Calculated the average duration of various kinds of contested matters in different classes of courts in various states of India, during the years 1953 to 1955 and prescribed a time limit within which the matter should be disposed for it to not be treated as "arrears"	A suit in a munsif's court	One year
	A suit in a subordinate judge's court	One year and a half
	Small cause suits	Three months
	Regular contested appeals in district courts	Six months
	Miscellaneous civil appeals in district courts	Three months
	Criminal cases in magisterial courts should be disposed of within two months	Two months
	Committal proceedings	Six weeks from the date of the apprehension of the accused
	Sessions cases	Three months from the date of the apprehension of the accused
	Criminal appeals and revisions in the court of session	Two months
	Criminal appeals and revisions in the High Court	Six months
	Second appeals, and letters patent appeals	One year
	First appeals in High Court	Two years
	Criminal matters and writs and civil revision petitions	Six Months
LAW COMMISSION OF INDIA, 79TH REPORT ON DELAY AND ARREARS IN HIGH COURTS AND OTHER APPELLATE COURTS (1979) Time period beyond which a case should be regarded as ‘old’ whose clearance assumes importance	Second Appeal and appeal against judgments of a single judge in the writ petition	One Year
	Regular First Appeal	Two years
	Criminal matters and civil revision	Six months
	Petitions under Article 226 (other than those for habeas corpus)	One year
	Habeas Corpus petition	Two months
	Cases submitted to the High Court for confirmation of the sentence of death pronounced by a court of session	Three months
	Original suits being tried at High Courts	Two years
	Income Tax references and proceedings under the General sales tax Act	One year
	Original petitions or appeals or revision petitions under Land Reforms Act or Tenecy Legislation and Rent Control Acts	Six months
LAW COMMISSION OF INDIA, 77TH REPORT ON DELAY AND ARREARS IN TRIAL COURTS (1979) Criterion for treating a case as an old case	Civil suit as well as a case under a special act	One year from the date of registration till the pronouncement of final judgment
	Criminal cases	Six months from the date of filing of the chargesheet or complaint tillthe date of pronouncement of final judgment

High Court Rules

Rule 2 of Chapter X- Warned List, Weekly and Daily Board of the Bombay High Court Appellate Side Rules, 1960 provides for an Arrear List which is a list of unready matters i.e. matters that are not ready to be placed on the Board (cause list) for final disposal. According to this, a matter shall be deemed to become in arrear

1. in the case of First Appeals, one year after their registration;
2. in the case of Second Appeals nine months after their registration.
3. in the case of Letters Patent Appeals, Appeals from Orders and Civil Revision Applications, six months after their registration;
4. in the case of Civil Applications and other miscellaneous matters three months after their registration;
5. in the case of short notice matters, three months after their registration;
6. in the case of expedited matters, three months after the date of order of expedition; and
7. in the case of Writ Petitions, thirty days after their registration.

International Experiences

The European Commission for the Efficiency of Justice (CEPEJ)

The European Commission for the Efficiency of Justice ( CEPEJ), in a document titled ‘Backlog Reduction tool’ refers to the backlog as pending cases at the court concerned which have not been resolved within an established timeframe. Here, timeframe is an established period of time (in the laws, regulations, court procedures, or among the court and parties), within which cases are expected to be solved.  Each judiciary has its own timeframes, and they are usually different for different case types. For example, if the timeframe has been set at 24 months for all the civil proceedings, the backlog is the number of pending civil cases longer than 24 months.

The Handbook on Cash Dashboards by the European Commission for the Efficiency of Justice (CEPEJ) recommends sets of time-oriented  Key Performance Indicators (KPIs) for Backlog analysis. These KPIs include case count of pending cases by age group, case type, and current status of the case (based on the last activity performed in the case or by the procedural state they are at such as pre-trial, trial, post-trial), accompanied with timeframes (number of pending cases over one year/two years/three years old, etc.). 

Council of Europe

The Revised Saturn Guidelines for Judicial Time Management (4th revision) by the Council of Europe (COE), prescribes indicators and benchmarks of performance in the courts. These indicators also include the Total backlog indicator and Backlog Resolution indicator. They are defined as

• Total backlog (TB indicator): Cases remaining unresolved at the end of the period, defined as the difference between the total number of pending cases at the beginning of the period, and the cases resolved within the same period. Example: If there were 1000 cases pending at the beginning of the calendar year, and the court terminated 750 cases during the calendar year, at the end of the calendar period there would be 250 cases that are calculated as total backlog.
• Backlog resolution (BR indicator): The time needed to resolve the total backlog in months or days, calculated as the relationship between the number of cases and the clearance time. Example: If there are 100 cases considered as total backlog at the end of the period, and the court completed 200 cases in the same period, the BR indicator is 6 months or 180 days.

National Center for State Courts (NCSC) - USA

The National Center for State Courts (NCSC) defines backlog as cases pending beyond a time standard. The NCSC’s Court Backlog Reduction Stimulator reflects this definition, by making it possible to forecast the share of pending cases that may be in backlog status going forward. The stimulator uses NCSC’s model time standards to provide a solid baseline for courts to work toward. These model time standards help define and measure backlog consistently.

The time-to-disposition guidelines of New Jersey’s backlog performance measurement process, define ‘active pending caseload’ to include both ‘in inventory’ and ‘backlog’ cases. The guideline conceptualizes backlog as ‘any case older than the applicable time-to-disposition guideline’ and ‘cases that have not yet reached the guideline age’ are considered to be in inventory.

Performance measures for Backlog

The guidelines also prescribe various performance measures for Backlog, these include:

• Pending case Backlog- Number of pending cases (including reopened and reactivated cases) that exceed their time-disposition guideline age.
• Pending very old Backlog- A subcategory of backlog cases that are typically two or three times as old as the applicable time-disposition-guideline age.
• Backlog percent- Number of backlog cases divided by the total active pending caseload, expressed as a percentage.
• Backlog Per 100 Filings- Number of backlog cases divided by the average number of newly added cases per month for the previous reporting year
• Very old Backlog Percent- Number of very old backlog cases divided by total active pending caseload, expressed as a percentage
• Very old Backlog Per 100 Filings- Number of very old backlog cases divided by the average number of newly added cases per month for the previous reporting year.

Canada

In Canada, the Action Committee on Court operations in response to COVID-19, in the document titled Roadmap to Recovery: Orienting Principles for reducing Court Backlog and Delays refers to Backlog as a phenomenon of having a ‘higher number of cases coming into the court system than the number of cases resolved during the same period’. Further, it provides that “Delays”, depending on the context, may refer either to

1) the amount of time it takes to advance a case through a given level of court (e.g. trial or appeal court) from the first appearance to the final disposition, or

2) factors or events that cause a case to take longer than reasonably expected under the circumstances.

Australia

The International Consortium for Court Excellence in its document titled Global Measures of Court Performance (Third Edition) defines Case Backlog as the proportion of cases in a court’s inventory of pending cases that have exceeded established timeframes or time standards.

Case Backlog is expressed in terms of the percentage of all the pending cases that are considered to be a backlog – that is, the proportion of cases that exceed the on-time case processing time reference points, benchmarks, and established time standards, or, simply, the proportion of pending cases that already have taken too long.)

The formula for the Calculation of Case Backlog

Case Backlog = A/B * 100 

A = Total Number of Cases in Backlog 

B = Total Number of Cases in the Current Inventory of Pending Cases

Case Backlog is an assessment of the age of the pending cases awaiting resolution or disposition expressed in terms of the number of elapsed calendar days between the date of filing or the start of processing of the case and the current date. 

Required data elements for this measure include

1. the number of cases in the inventory of active pending cases by major case type, level of court, court location, and other variables;
2. the number of elapsed days each case in the inventory has been pending since it was registered, filed, opened or reopened; and,
3. identification of the points of reference, benchmarks, or time standards (in days) for on-time case processing of major case types.

Critical to this measure are precise descriptions and concise definitions of the major case types, the identification of time reference points, standards, or time benchmarks, and the case processing events that constitute the filing (opening) and resolution or disposition (closing) of cases by case type.

Research that engages with

• Backlog Reduction Programmes and Weighted Caseload Methods for South East Europe, Two Comparative Inquiries FINAL REPORT Lot 3: Analysis of Backlog Reduction Programmes and Case Weighting Systems

The research report contains a brief narrative part introducing the court backlog reduction programs and their importance for the efficiency of the judiciary in the Beneficiaries, and a summary of the existing best practices in EU member states. It also takes into consideration literature on backlog reduction from the United States and Australia.

• REASONABLE TIME OF PROCEEDINGS: COMPILATION OF CASE-LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS

The compilation explores the fundamental procedural guarantee of a reasonable time period. It sheds light on questions like the period considered for the purposes of the reasonable time assessment, the criteria applied for the assessment of the length of the proceedings, and the effect of lengthy proceedings on other rights by exploring judicial pronouncements of ECHR.