There has been no resolution so far to the issue of assured fuel supply from Coal India Limited (CIL) to power producers. According to reports, while CIL released a model supply agreement in April 2012, so far only around 13 Fuel Supply Agreements (FSAs) have been signed. Originally around 50 power units were expected to sign FSAs with CIL. Power producers have objected to the model FSA released by CIL, particularly its force majeure provisions and the dilution of financial penalties in case of lower than contracted supply. Background The adverse power supply situation has attracted greater attention in the past few months. According to Central Electricity Authority's data, the gap between peak demand and peak supply of power in March 2012 was 11 per cent. The decreasing availability of fuel has emerged as a critical component of the worsening power supply situation. As of March 31, 2012, there were 32 critical thermal power stations that had a coal stock of less than 7 days. The gap between demand and supply of coal in the past three years is highlighted below: Table 1: Coal demand/Supply gap (In millions of tonnes)
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2009-10 |
2010-11 |
2011-12 |
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| Demand |
604 |
656 |
696 |
| Supply |
514 |
523 |
535 |
| Gap |
90 |
133 |
161 |
Source: PIB News Release dated May 7, 2012 Coal accounts for around 56 per cent of total installed power generation capacity in India. Increased capacity in thermal power has also accounted for almost 81 per cent of the additional 62,374 MW added during the 11th Plan period. Given the importance of coal in meeting national energy needs, the inability of CIL to meet its supply targets has become a major issue. While the production target for CIL was 486 MT for 2011-12, its actual coal production was 436 MT. Fuel Supply Agreements In March 2012, the government asked CIL to sign FSAs with power plants that have been or would be commissioned by March 31, 2015. These power plants should also have entered into long term Power Purchase Agreements with distribution companies. After CIL did not sign FSAs by the deadline of March 31, 2012 the government issued a Presidential Directive to CIL on April 4, 2012 directing it to sign the FSAs. The CIL board approved a model FSA in April 2012, which has not found acceptance by power producers. According to newspaper reports, many power producers have expressed their dissatisfaction with the model FSA released by CIL. They have argued that it differs from the 2009 version of FSAs in some major ways. These include:
Most power producers, including NTPC, the country’s biggest power producer, have refused to sign the new FSA. Reports suggest that the Power Minister has asked the Prime Minister’s Office to mandate CIL to sign FSAs within a month based on the 2009 format. CIL has received a request from NTPC to consider signing FSAs based on the same parameters as their existing plants, but with the revised trigger point of 80 per cent (down from 90 per cent earlier). Underlying this situation is CIL’s own stagnating production. Various experts have pointed to the prohibition on private sector participation in coal mining (apart from captive projects) and the backlog in granting environment and forest clearances as having exacerbated the coal supply situation.
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).
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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. |
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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.
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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
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Method of calculation |
Recommendation and its status |
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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. |
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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. |
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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. |
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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.
