In the late 1960s and 70s, defections (elected legislators changing parties after the election) in Parliament and State Legislatures became very frequent, so frequent in fact, that the epithet "Aaya Ram Gaya Ram" was coined to describe the same.  To curb this problem which created instability in our legislatures, Parliament amended the Constitution.  They inserted the Tenth Schedule to the Constitution "to curb the evil of political defections".  As a result, we currently have an anti-defection law with the following features: 1.  If an MP/MLA who belongs to a political party voluntarily resigns from his party or, disobeys the party "whip" (a direction given by the party to all MPs/ MLAs to vote in a certain manner), he is disqualified.   The party may however condone the MP/ MLA within 15 days. 2.  An independent MP/ MLA cannot join a political party after the election. 3.  An MP/ MLA who is nominated (to the Rajya Sabha or upper houses in state legislatures) can only join a party within 6 months of his election. 4.  Mergers of well-defined groups of individuals or political parties are exempted from disqualification if certain conditions are met. 5.  The decision to disqualify is taken by the Speaker/ Chairman of the House. The table below summarizes provisions of anti-defection law in some other countries.  (For more, click here).  As one may note, a number of developed countries do not have any law to regulate defection.

Regulation of defection in some countries

Country Experi-ence Law on defection The Law on Defection
Bangladesh Yes Yes The Constitution says a member shall vacate his seat if he resigns from or votes against the directions given by his party.  The dispute is referred by the Speaker to the Election Commission.
Kenya Yes Yes The Constitution states that a member who resigns from his party has to vacate his seat.  The decision is by the Speaker, and the member may appeal to the High Court.
Singapore Yes Yes Constitution says a member must vacate his seat if he resigns, or is expelled from his party.  Article 48 states that Parliament decides on any question relating to the disqualification of a member.
South Africa Yes Yes The Constitution provides that a member loses membership of the Parliament if he ceases to be a member of the party that nominated him.
Australia Yes No  
Canada Yes No  
France Yes No  
Germany Yes No  
Malaysia Yes No  
United Kingdom Yes No  

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



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)


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)


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.