The Land Acquisition Bill is slated to be taken up for consideration and passing in the Lok Sabha today. The government had circulated an amendment list in the last session of Parliament. In a column in the Financial Express, MR Madhavan discusses the major features of the Land Acquisition Bill and the associated issues that Parliament may need to consider while deliberating on the Bill. Economic growth and job creation require efficient usage of land resources. It is important that a fair and transparent process for purchase and for acquisition of land is followed. For the purchase of land, a key concern is the authenticity of land titles, and the government has drafted a Land Titling Bill for this purpose. In the case of land acquisition, the following questions need to be addressed. What are the end-uses for which public interests will trump private property rights, and justify acquisition of land from a person who is not willing to part with it? What should be the process followed? Since there is no market mechanism of discovery of prices in these cases, how should compensation be computed? Is there a need to address non-land owners who may be displaced by the acquisition process? Does the acquisition process get completed in a reasonable amount of time, and is there finality to the acquisition? In sum, do both sides—the acquirer and the land owner—perceive the process to be fair? The current Bill addresses these questions in the following manner. It defines public purpose to include infrastructure projects (as defined by the finance ministry, with some exclusions); projects related to agriculture, agro-processing and cold storage; industrial corridors, mining activities, national investment and manufacturing zones; government administered or aided educational and research institutions; sports, healthcare, transport and space programmes. It also enables the government to include other infrastructural facilities to this list after tabling a notification in Parliament. The significant difference from the current Land Acquisition Act, 1894, is that land cannot be acquired for use by companies unless they satisfy any of the above end-uses. The Bill includes a requirement for consent of the land owners in some cases. If the land is acquired for use by a private company, 80% of land owners need to give consent. If it is for use by a public private partnership (PPP), 70% of the land owners have to agree to the acquisition. The rationale of having differential consent requirements based on ownership—including the lack of any such requirement if the land is for the use of the government or a public sector undertaking—is not clear. Why should a land owner, who is losing his land care, whether the intended project is to be executed by the government or a private company? The Bill specifies that the compensation will be computed in the following manner. Three factors are taken into account: the circle rate according to the Stamp Act; the average of the top 50% of sale deeds registered in the vicinity in the previous three years; the amount agreed upon, if any, in case of purchase by a private company or PPP. The higher of these three amounts is multiplied by a factor, which varies from 1 in urban areas to a number between 1 and 2 in rural areas, depending upon the distance from the urban centre. To this amount, the value of any fixed assets such as buildings, trees, irrigation channels etc is added. Finally, this figure is doubled (as solatium, i.e. compensation for the fact that the transaction was made with an unwilling seller). The justification given for the multiplier ranging from 1 to 2 is that many transactions are registered at a price significantly lower than the actual value in order to evade taxes—the moot question is whether such under-reporting is uniform across the country? The Bill states that all persons who are affected by the project should be rehabilitated and resettled (R&R). The R&R entitlements for each family includes a house, a one-time allowance, and choice of (a) employment for one person in the project, (b) one-time payment of R5 lakh, or (c) inflation adjusted annuity of R2,000 per month for 20 years. In addition, the resettlement areas should have infrastructure such as a school, post office, roads, drainage, drinking water, etc. The process has several steps. Every acquisition, regardless of size, needs a social impact assessment, which will be reviewed by an expert committee, and evaluated by the state government. Then a preliminary notification will be issued, land records will be updated, objections will be heard, rehabilitation and resettlement survey carried out, and a final declaration of acquisition issued. The owners can then claim compensation, the final award will be announced, and the possession of the land taken. The total time for this process can last up to 50 months. The big question is whether this time frame would hinder economic development and the viability of projects? The Bill provides for an Authority to adjudicate disputes related to measurement of land, compensation payable, R&R etc, with appeals to be heard by the High Court. There are several restrictions on the land acquired. The purpose for which land is acquired cannot be changed. If land is not used for five years, it would be transferred to a land bank or the original owners. Transfer of ownership needs prior permission, and in case of transfer in the first five years, 40% of capital gains have to be shared with the original owners. Recent cases of land acquisition have been followed by public protests, and the stalling of the acquisition. Whereas some of these may be driven by political agendas, the old Act was perceived to be unfair to land owners in several ways. The challenge for Parliament is to examine the new Bill and craft the law in such a way that it is fair (and perceived as such) to land owners, while making acquisition feasible and practical for projects that are required for economic development and other areas of public interest.

Recently, the Supreme Court collegium reiterated its recommendations for the appointment of 11 judges to certain High Courts.  It had first recommended these names earlier this year and in August last year, but these appointments were not made.  The Indian judiciary faces high vacancies across all levels (the Supreme Court, High Courts, and subordinate courts).  Vacancy of judges in courts is one of the reasons for delays and a rising number of pending cases, as there are not enough judges to hear and decide cases.  As of today, more than four crore cases are pending across all courts in India.   In this blog post, we discuss vacancies across courts over the years, delays in appointment of judges, and methods to determine the adequate judge strength required to handle the caseload courts face.

High vacancy of judges across courts

Vacancies in courts keep on arising periodically due to retirement, resignation, demise, or elevation of judges.  Over the years, the sanctioned strength of judges in both High Courts and subordinate courts has been increased gradually.  However, vacancies persist due to insufficient appointments (see Figures 1 and 2).  Between 2010 and 2020, vacancies increased from 18% to 21% across all levels of courts (from 6% to 12% in the Supreme Court, from 33% to 38% in High Courts, and from 18% to 20% in subordinate courts). 

Figure 1: Vacancy of judges in High Courts

Figure 2: Vacancy of judges in subordinate courts

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Sources: Court News 2010-2018; Vacancy Statement, and Rajya Sabha replies, Part I, Budget Session (2021), Department of Justice; PRS.

As on November 1, 2021, the Supreme Court had a vacancy of one judge (out of a sanctioned strength of 34).  Vacancy in High Courts stood at 37% (406 posts vacant out of a sanctioned strength of 1,098).  Since May, 2021, the Supreme Court collegium has recommended more than 130 names for appointment as High Court judges.  In three High Courts (Telangana, Patna, and Calcutta), at least half of the posts are vacant (see Figure 3).  The Standing Committee on Personnel, Public Grievances, Law and Justice (2020) noted that every year, 35-40% of posts of High Court judges remain unfilled. 

Figure 3: Vacancy of judges across High Courts (in %) (as on November 1, 2021)

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Source: Vacancy Statement, Department of Justice; PRS.

 

 

 

 

 

 

 

 

 

Appointments of High Court judges are guided by a memorandum of procedure.  As per this memorandum, the appointment process is to be initiated by the concerned High Court at least six months before a vacancy occurs.  However, the Standing Committee (2021) noted that this timeline is rarely adhered to by High Courts.  Further, in the final stage of the process, after receiving recommendations from the Supreme Court collegium, the executive appoints judges to the High Court.  No timeline is prescribed for this stage of the appointment process.  In 2018 and 2019, the average time taken to appoint High Court judges after receiving the collegium’s recommendations was five to seven months.

As of today, over 3.6 crore cases are pending before subordinate courts in India.  As on February 20, 2020, 21% posts for judges were vacant (5,146 posts out of the sanctioned strength of 24,018) in subordinate courts.  Subordinate courts in Bihar, Haryana, and Jharkhand (among the states with high population) had a high proportion of vacancies of judges (see Figure 4).  Note that the Supreme Court is monitoring the procedure for appointment of judges to subordinate courts.

For an analysis of the data on pendency and vacancies in the Indian judiciary, see here.

Figure 4: Vacancy of judges across subordinate courts (in %) (as on February 20, 2020)

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Source: Report No. 101, Standing Committee on Personnel, Public Grievances, Law and Justice (2020); PRS.

 

How many judges do we need?

The Law Commission of India (1987) had noted the importance of manpower planning for the judiciary.  Lack of adequate number of judges means a greater workload per judge.  Thus, it becomes essential to arrive at an optimal judge strength to deal with pending and new cases in courts.  Over the years, different methods of calculating the required judge strength for subordinate courts (where the backlog of cases in the Indian judiciary is concentrated) have been recommended (see Table 1). 

Table 1: Methods recommended for calculating the required number of judges for subordinate courts

Method of calculation

Recommendation and its status

Judge-to-population ratio: optimum number of judges per million population

The Law Commission of India (1987) had recommended increasing this ratio to 50 judges per million people.  This was reiterated by the Supreme Court (2001) and the Standing Committee on Home Affairs (2002).  For 2020, the judge-to-population ratio was 21 judges per million population.     Note that this figure is calculated based on the sanctioned strength of judges in the Supreme Court, High Courts and subordinate courts.

Rate of disposal: number of additional judges required (to clear the existing backlog of cases and ensure that new backlog is not created) based on the average number of cases disposed per judge

The Law Commission of India (2014) proposed this method.  It rejected the judge-to-population ratio method, observing that filing of cases per capita varies substantially across geographic units depending on socio-economic conditions.

Weighted case load method: calculating judge strength based on the disposal by judges, taking into account the nature and complexity of cases in local conditions

The National Court Management Systems Committee (NCMS) (2016) critiqued the rate of disposal method.     It proposed, as an interim measure, the weighted case load method, which addresses the existing backlog of cases as well as the new flow of cases every year in subordinate courts.     In 2017, the Supreme Court accepted this model.

Time-based weighted case load method: calculating the required judge strength taking into account the actual time spent by judges in different types of cases at varying stages based on an empirical study

Used widely in the United States, this was the long-term method recommended by the NCMS (2016) to assess the required judge strength for subordinate courts.  It involves determining the total number of ‘judicial hours’ required for disposing of the case load of each court.  The Delhi High Court used this approach in a pilot project (January 2017- December 2018) to calculate the ideal judge strength for disposing of pending cases in certain courts in Delhi.

Sources: Reports No. 120 (1987) and 245 (2014), Law Commission of India; Report No. 85, Standing Committee on Home Affairs (2002); Note for Calculating Required Judge Strength for Subordinate Courts, National Court Management Systems Committee (NCMS) (2016); Imtiyaz Ahmad vs. State of Uttar Pradesh, Supreme Court (2017); PRS.