Pendency

This article is not about solving judicial pendency but merely about developing accurate and consistent methods to 'count' or 'measure' it.

What is pendency?

The Pendency of a case refers to the duration or length of time that a case has been pending or ongoing before the court (or other judicial institution).

In the Indian justice system, pendency is commonly used to refer to the total volume of active cases (news reports frequently refer to “44 million pending court cases”[1]; “pendency of 5 crore court cases a matter of grave concern”[2] or “COVID effect: pendency of cases in district courts went up by 13% in 2020, finds think tank”[3]). Despite this, pendency is considered a negative metric of the efficiency and productivity of the judicial system. India is said to have the largest backlog of court cases in the world.[4]

Pendency is an extremely significant measure that occupies a crucial place in the conversation on judicial capacity and reforms; however, it does not reflect qualitative principles in justice delivery such as:

• fairness,
• equal or unbiased treatment of parties,
• quality of deliberation or
• consistent application of legal principles.

What does pendency reflect with respect to court functioning?

Pendency of court cases may be indicative of:

1. Delays in cases being accepted by the court or tribunal's registry for not having all of the required documents and signatures or not clearing office objections;
2. Delays in cases being listed or heard before the judge;
3. Procedural delays such as frequent adjournments, non-appearance of witnesses, failure to submit counter affidavits, written statements, etc.;
4. Complexity at the hearing stage involving the production of witnesses or evidence;
5. Lengthy oral arguments or filing of irrelevant/unconnected written pleadings to delay proceedings;
6. Any challenges or difficulties faced by the judge in rendering a final verdict or judgment; etc.

If any of the parties to litigation, their lawyers or the presiding judge is not inclined to move swiftly, there is a wide range of tactics that may be used to derail proceedings. Many reports put out by the Department of Justice, various Law Commissions and universities & research organisations are aimed at better understanding the factors that drive pendency and suggesting ways to decrease it.

‘Pendency reduction’ is the impetus behind a number of schemes in the Law & Justice sector from the creation of tribunals & special courts, to digital or paperless courts, to emphasis on Alternate Dispute Resolution mechanisms, to monitoring real-time data on court cases and enabling analysis of their types, stages & progress. 

Official definition of pendency

Law Commission Reports

The clearest definition of pendency was given in the 245th Law Commission Report (2014) which suggested that pendency should be defined as “all cases instituted but not disposed of, regardless of when the case was instituted.” This is consistent with our contemporary understanding in which “pending” is synchronous with “active”.

The report also emphasised the importance of distinguishing pendency from:

Delay: in which a case of a particular type takes longer than the ‘normal time’ it should take for disposal,

Arrears: these are a subset of delayed cases and cover those showing “unwarranted delay” for “[in]valid reasons, and

Backlog: which is the “accumulation of cases” from one time period to the next due to the “system’s inability” to dispose of cases at an equivalent rate to the institution of fresh cases. If backlog increases over time, it means not just that the active caseload is increasing, but that it is increasing at an increasing rate.

• The Fourteenth Law Commission Report was titled ‘Reform of Judicial Administration’ (1958) and published in two volumes. This report suggested a definition of “arrears” for specific case types based on time-frames required for normal disposal. These were calculated from the date of institution and ranged from six months to two years.
• The Seventy Ninth Report on ‘Delay and Arrears in High Courts and other Appellate courts’ (1979) expanded this method further with additional timelines to determine arrears for other case types:

Time limit	Case types
2 months	Habeas Corpus writ
3 months	Confirmation of death sentence
6 months	Petitions under land reforms, tenancy legislation and rent control act
1 year	Tax related matters; Petitions under article 226; and Second appeals and appeals against judgments of single judges in writ petition
2 years	Regular first appeal; Original suits

In 2009, the 230th Law Commission Report broke from this approach and stressed that while there should be some time-frame to qualify a case as pending, it shouldn't be a standard for a particular case type. While setting time standards is essential, it will vary not only by case type, but also depending on the disposal-capacity of a particular court.

This has given rise to debate over a number of metrics and formulae to empirically calculate the actual productive capacity of courts ranging from ideal judge strength to case clearance rate.

Other official reports

Other committees further explored setting timeframes for pendency, delay and arrears as well other systemic inputs that could increase the capacity of the judicial system from infrastructure to court management to digitisation:

"Pendency - [e]specially of fresh cases, is not a negative phenomenon. As levels of prosperity, economic progress, literacy, and awareness increase, filings go up. Every case requires a defined and "acceptable" case life so that justice is not hurried and buried."

Report name	Year published	Time-frame
Malimath Committe	2003	Suggests that a two year time-frame is appropriate to dispose criminal cases
Subordinate Courts of India : A Report on Access to Justice	2016	Defines Backlog as number of cases pending for more than a year.
National Initiative to Reduce Pendency and Delay in Judicial System	2018	Emphasised litigants' right to speedy trials but recommended no generic time-frame for disposal, instead suggesting development by each High Court of "time-bound action plan[s] to curtail the growth of... arrears."

At present there is no ‘rational and scientific formula’ being applied to the calculation of any of these phenomena, whether pendency, delay, backlog or arrears. Instead, all cases are considered pending, and the other phenomena are being captured on an ad-hoc basis by seeking data from High Courts and aggregating them at a pan-India level.

Appearance in official databases

The National Judicial Data Grid (for both High Court and District & Taluka Courts) uses pending status to represent cases, including by number of years pending and types of cases.

Under the Pending tab of the Dashboard, a number of pending cases is repeatedly identified as pendency; with "age wise pendency" referring to number of years pending.

Annual Reports: In court performance statistics and Annual Reports, there has been a shift towards avoiding the term “Pendency” on its own and instead using “number of pending cases” as well as reporting them both at the beginning and end of specified time periods. This allows them to be tallied or validated across successive time-periods and for the backlog to be regularly calculated.

Research that engages with pendency

• Deconstructing Delay: Analyses of Data from High Courts and Subordinate Courts from Justice in India (volume) by Arunav Kaul, Ahmed Pathan and Harish Narasappa (2018). In this chapter, the authors analyse the average duration of pendency before High Courts (3 years at the time) and subordinate courts (6 years at the time) as well as how this varied across states. The analysis was based on data collected by DAKSH and separated trends of both duration of pendency and proportion of pending cases across civil, criminal and writ cases.

• Delhi High Court Zero Pendency project

• Pendency is a localised issue and therefore needs to be examined in a disaggregated manner by state or even by district. Pendency in lower judiciary: Importance of mapping data over time – Dr. Yugank Goyal and Smriti Jalihal of FLAME University “There’s no singular state of pendency across India. When we talk of the state of pending court cases in India, different states have vastly different realities.”

• Pendency during the Pandemic by Alok Prasanna (2021). This journal article was published in Economic and Political Weekly and analysed a rising number of pending cases before the Supreme Court during the first year of the COVID-19 pandemic, from March 2020 to March 2021. While pendency had been growing prior to the pandemic, the "rate of increase of pending cases has gone up" during the observed period.

Data challenges in 'counting' pendency

5.1 What is a case? While the ‘number of (active) cases’ seems like it should be a straightforward metric, some high courts consider interlocutory applications received in subordinate courts as distinct cases while others do not. Similarly, committal proceedings, traffic and police challans, etc may also be counted as separate cases; thereby leading to the inflation of actual case units active within the system. This was observed by the 245th Law Commission Report, but the data collected may have been poor as a number of states did not submit the questionnaire. [Has this been updated?]

5.2 Inconsistent trends: Pendency reported as on a particular date may contain inconsistencies or errors when viewed alongside data reported in previous or later reports. In one instance, cases instituted were reported as negative in order to balance the backlog cleared within the year. Therefore, in order to ensure concurrent reports may be tallied, the 245th Law Commission Report recommends a particular formula for calculating pendency:

This has been adopted as a data reporting practice in some courts and is a legislative mandate in commercial courts [See above: official databases].

5.3 Aggregate pendency vs. case types: Counting overall pending cases may not be the most useful measure without a deeper understanding of which case types contribute to it the most. Increasing backlog over time may in truth be attributed to particular case types and strategies to reduce pendency would be greatly benefitted if they were informed by data disaggregated by case categories and case types.

5.4 Distinction between active and pending cases: While some work has been done to distinguish between pending and backlogged cases in the Indian context, it is less clear whether all active cases should truly be considered pending.

This nomenclature shift relies heavily on setting benchmarks or indicative time-frames for how long a case of a particular type should take to be disposed/decided/concluded. This has been recommended in judgments delivered in the Imtiyaz Ahmad case, however such standards have not yet been conceptualised.

5.5 Calculation of pendency covering calendar days vs. working days of the court

5.6 Whether calculation of pendency should begin from the date of filing or from the date of registration i.e. that case files have passed scrutiny and the case is now listed for its First Hearing

5.7 Representing pendency through averages and medians:

Way ahead

1. Developing a common understanding of how many cases are currently active before courts by linking & consolidating satellite litigation with main cases
2. Drawing a clear distinction between active cases and pending cases
3. Disaggregating pendency at the level of multiple 'units' whether case types, states, districts or even
4. Demonstrating the effectiveness of medians rather than averages in conversations about case durations.