The recent NCERT textbook reference linking judicial pendency with corruption—met with sharp disapproval from the Supreme Court—was followed by an equally sharp public response: when over 55 million cases remain pending, the judiciary cannot claim to be beyond criticism. This exchange has reopened a familiar but inadequately examined debate. Pendency is repeatedly invoked as evidence of judicial failure. Yet before accepting that conclusion, a more fundamental question must be asked—what do these numbers actually represent?
Pendency is often treated as a measure of judicial lethargy, overlooking the functional structure of a trial. A court does not generate its own raw material; it adjudicates what is brought before it. The case belongs to the parties—whether citizen or the State—and it is they who must produce evidence and move the process forward. When witnesses are not produced, documents are not filed, investigations remain incomplete, or procedure is used to delay, the process stalls. What is then described as judicial inaction is, in substance, a halt in the process itself. To attribute such delay to the court is to blame a mirror for the reflection it shows. Much of what is counted as judicial backlog is, in fact, the accumulation of delay beyond the court's control—most visibly in the district judiciary, where nearly 85% of pendency resides.
The inquiry, therefore, is not merely about numbers, but about structure. It proceeds in two parts: the first identifies where delay arises and the sources from which it is generated; the second examines how this delay comes to be attributed, how the system's capacity is assessed, and how alternative mechanisms begin to displace adjudication. Only through this combined view can the question of accountability be meaningfully addressed.
Part-1 The Anatomy of Delay
Service of Summons and Production of Evidence
A recurring source of pendency lies in the failure of parties to ensure service of summons and timely production of evidence. In both civil and criminal cases, the responsibility for moving a case forward rests with the parties. The court issues process; its effectiveness depends on how it is pursued.
In civil cases, delay often begins at admission. Addresses change, particularly where multiple defendants are involved, and service becomes prolonged. Follow-up is weak, steps are delayed, and process is repeatedly reissued. Years may pass before the matter reaches trial. The same pattern persists during trial, where delay is often achieved within the framework of procedure itself. Courts, reluctant to deny access at admission or terminate proceedings mid-trial, allow time. What is intended as fairness is later read as delay. Prolongation by parties, though procedurally compliant, ultimately reflects as pendency of the court.
In criminal cases, the structure is similar, though responsibility shifts. The production of witnesses lies with the investigating agency. It is for the police to secure their presence, prepare them, and present them before the court. In practice, this responsibility is frequently not discharged. When witnesses are not served or do not appear, the case stalls—both after filing of the charge sheet and during trial. Courts do not abruptly close the prosecution case, as doing so may prejudice the State's case and affect the maintenance of law and order. Opportunities are therefore granted. Each such opportunity is later counted as delay.
It is often argued that courts possess their own process-serving machinery and should therefore ensure production of witnesses. This overlooks both its origin and its limits. The court's role in process execution developed as a safeguard against exclusive reliance on the investigating agency, to preserve neutrality and protect the rights of the accused. But that safeguard does not alter the basic structure: the case belongs to the prosecution, and the responsibility to produce witnesses remains with it. The safeguard against distortion lies in cross-examination, not in shifting this responsibility to the court.
When the investigating agency fails to produce witnesses, the burden informally shifts to the court. Process is issued through court machinery in an attempt to secure attendance. But this mechanism cannot substitute the role of the police. Courts facilitate process; they do not command participation. If this logic were extended, even in civil cases the burden of producing evidence would shift to the court, reducing parties to mere initiators of litigation.
There is also little effective coercion in disobedience of summons. For independent witnesses, the incentive to appear is weak—often accompanied by inconvenience, uncertainty, and apprehension of safety. Even when such witnesses appear, evidentiary value suffers. Recollection after delay is often uncertain, while adjudication demands precision.
By contrast, where witnesses are produced by the investigating agency, their previous statements recorded during investigation are referred to them, memory refreshed, and appearance secured with institutional backing. The presence of the police provides assurance to the witness and accountability to the process. It also compels the agency to prioritise the quality of evidence over mere quantity.
When this responsibility is diluted, the result is predictable. The system shifts from preparation to accumulation—more witnesses, less substance; more process, less proof.
The consequence is not merely delay, but deterioration in adjudication itself. Even the court's process-serving mechanism operates under constraint—understaffed, under-resourced, and overburdened. In this setting, the court becomes the point where delay is recorded.
And visibility becomes blame.
Coercive Process and Execution of Warrants
Pendency deepens at the stage of coercive enforcement, where courts are empowered to compel compliance through bailable and non-bailable warrants issued to the police, as well as through attachment of property and recovery routed to revenue authorities. While these powers appear sufficient in law, their effectiveness depends entirely on execution by external agencies. The court cannot secure presence, attach property, or recover dues on its own.
Once such orders are issued, the matter moves beyond the courtroom. What follows is often prolonged inaction—warrants remain unexecuted, attachments are delayed, and recovery does not materialise. Cases stall at this stage not for want of adjudication, but for want of execution, yet they continue to be counted as pending before the court. A structural distortion emerges: the moment the court exhausts its authority, the system begins to measure its inaction, and what lies beyond its control is brought back into its account.
This stage does not merely delay the process; it undermines rights already adjudicated. Orders remain on paper without translating into reality. A common illustration is maintenance: relief is granted, yet payment is not made. Coercive processes are issued but remain ineffective, and the entitled party continues to be deprived, even as the grievance is directed at the court.
The law does provide mechanisms to address inaction by executing authorities, but these are rarely invoked, often in the name of administrative coordination. This restraint, though intended to preserve institutional harmony, ultimately reflects back as judicial delay—even where the failure lies in enforcement.
Failure in execution is recorded as pendency in the court.
And once again, responsibility is placed where control does not exist.
Pendency at the Stage of Investigation
A significant portion of pendency arises even before adjudication begins—at the stage of investigation. Once an FIR is registered, the case enters the court system and appears in its statistical record, though it remains entirely within the control of the investigating agency. The decision to complete investigation, prepare the case diary, and file a charge sheet or final report lies exclusively with the executive. The court neither investigates nor generates evidence; it can only await the outcome.
Yet such matters continue to be counted as pending before the court. The result is a structural distortion: cases that have not reached trial are treated as judicial backlog. What is recorded, in substance, is investigation pendency—not judicial delay. Months, often years, may pass before the process is completed, but these cases are absorbed into aggregate figures and attributed to the judiciary, converting executive delay into judicial pendency and assigning responsibility without reference to control.
Non-Production of Essential Reports and Sanctions
Another layer of stagnation arises from the non-production of essential reports and statutory approvals. In many criminal cases, proceedings cannot move forward in the absence of foundational inputs such as death reports, forensic examination reports, and sanction orders. Without these, the court cannot legally proceed—whether to abate proceedings on death, assess evidence dependent on forensic analysis, or take cognizance where prior sanction is mandatory.
In such situations, the file remains before the court, but control over progress lies entirely outside it. The court cannot verify death without official record, generate forensic evidence, or issue sanction. Months, often years, pass while these documents are awaited, yet the cases continue to be counted as pending.
A related difficulty arises from lapses in maintaining accurate particulars during investigation. By the time the matter reaches court, details of the accused and witnesses—including the victim, informant, and even official witnesses—are often outdated or incomplete. When the court requires the prosecution to furnish correct particulars for issuance of process, further time is spent tracing them. The delay here is not procedural but foundational—the inability to locate the persons necessary for the case to proceed.
What appears as judicial delay is, in substance, the absence of inputs necessary for adjudication—administrative and investigative lapses reflected as pendency of the court.
State-Generated Litigation
The most significant, and often overlooked, contributor to pendency is the volume of litigation generated by the State itself. A substantial portion of the district court docket arises not from organic disputes, but from the manner in which the State conducts its functions.
On the criminal side, enforcement agencies—police, excise, forest, railway, transport and others—operate under performance metrics measured in numbers: cases detected, prosecutions initiated, offences booked. This produces a steady inflow of routine, low-intensity, and procedurally similar cases. Once filed, each must pass through the full judicial process. The court has no discretion to reject them on the ground that they are target-driven. Volume increases not necessarily with the gravity of crime, but with its recording.
On the civil side, the pattern is more direct. Disputes that could be resolved administratively are allowed to escalate into litigation. Matters relating to unauthorised eviction, land acquisition compensation, civil wrongs arising from State action, and delays in issuance of records are routinely brought before courts because administrative resolution has failed. In such cases, the State is not merely a party; it is the source of the dispute.
The consequence is structural. The burden of resolution shifts from the executive to the judiciary. The State, with its expansive machinery, generates a substantial share of litigation, while the judiciary, with limited capacity, is expected to absorb it. When this load strains the system, the strain is described as judicial pendency.
Litigation unnecessary in origin consumes time meant for genuine disputes. The court becomes not merely an adjudicator of rights, but a compensatory mechanism for administrative failure. The system, in effect, externalises its inefficiency to the judiciary.
And when the docket expands under this pressure, the resulting pendency is attributed to the court.
Legislative Sources of Pendency
Another significant but often overlooked cause of pendency lies in the quality and structure of legislation itself. Laws are frequently drafted in broad or overlapping terms, enacted without adequate assessment of logistical feasibility, and implemented without continuous monitoring of their consequences. Many such laws remain on the statute book long after their practical utility has diminished, without timely repeal or rationalisation. The result is predictable—uncertainty in application, multiplicity of proceedings, and avoidable litigation.
A clear illustration is found in family disputes. A single matrimonial conflict often gives rise to multiple parallel proceedings—one under the Family Courts Act, another under the Hindu Marriage Act, proceedings under the Protection of Women from Domestic Violence Act, and yet another under the Code of Criminal Procedure for maintenance. What is, in substance, one dispute becomes four separate cases, each requiring independent process, evidence, and adjudication. If such disputes were structurally consolidated, the volume of litigation would reduce significantly without affecting the rights of the parties. Instead, the present legislative framework multiplies proceedings by design.
Each such instance demonstrates that pendency is not merely a function of delay in courts, but also of how the legal system is structured. When the law itself generates multiple proceedings for a single cause, accumulation is inevitable.
Structural Constraint: Capacity and Consequence
Even if every stage discussed earlier were to function perfectly, pendency would remain. The problem is not only process—it is design.
The system is required to deliver more than it is built to handle. India operates with roughly 21 judges per million population against a long-recognised requirement of around 50 per million, while comparable systems function at significantly higher levels—around 100 per million in the United States, 50–60 in the United Kingdom, and often 60–100 or more across European jurisdictions. Judicial strength is limited, vacancies persist, and inflow continues to rise. Under such conditions, the pressure is not merely to decide, but to decide more. And when quantity is demanded within fixed capacity, quality becomes the first casualty.
Adjudication is not a mechanical output. It requires time, attention, and application of mind. But under continuous pressure of disposal, decision-making risks becoming performative—measured by numbers rather than depth. The system begins to reward disposal, not deliberation.
This strain is not confined to judges alone. Courts function on staff, logistics, and infrastructure—clerks, process servers, record systems, and administrative support. When these are inadequate, judicial time is drawn away from adjudication and absorbed into management—tracking records, ensuring process, coordinating execution. The system slows not because the court does less, but because it must do more than adjudication.
This is not a failure of intent; it is a consequence of constraint. Judges do not control the volume of cases or the capacity within which they function. Yet the expectation remains unchanged—more cases, fewer resources, and constant demand for higher disposal.
The result is inevitable. The system is stretched between volume and value. And in that tension, what is lost is not merely time, but quality.
Author is a Lawyer. Views are personal.