How substantial are non-substantive hearings in Indian courts: some estimates from Bombay

by Pavithra Manivannan, Karthik Suresh, Susan Thomas, and Bhargavi Zaveri-Shah.

The problem

If we think about court as a services production organisation, then the number of staff, technology and other resources would be inputs to deliver well-defined outcomes of litigants' cases being decided satisfactorily. In between these inputs and outcome are hearings as the output of courts. Hearings are where the matter of the dispute is presented in front of a judge. When hearings are substantive, progress is made in resolving the dispute.

Not all hearings are substantive. Some non-substantive hearings are inevitable, involving procedural matters such as the filing of documents. When a hearing is non-substantive because the matter is rescheduled to a later date, this imposes a burden of time and cost upon litigants and the court.

Such unexpected non-substantive hearings are an important problem in the Indian legal system. The Civil Procedure Code (1909) prescribes a limit of three adjournments per case, but reality often diverges from this stated limit. In 2021, the e-committee of the Supreme Court has proposed an alert for judges to be informed about breaches in this 3-adjournment rule within its case management system. There is thus a recognition of the presence of this problem.

What is not, at present, known is a quantitative sense of the improtance of the problem. In this article, we estimate the magnitude of non-substantive hearings for one group of situations. The working of the Indian legal system varies widely by venue and case type. In order to measure the phenomenon of non-substantive hearings, we pick one relatively homogeneous class of disputes --- debt dispute resolution --- which are heard at three courts in Bombay. They are the National Company Law Tribunal (NCLT), the Debt Recovery Tribunal (DRT), and the Bombay High Court (Bombay HC). For these three venues, we seek to estimate four quantities:

1. What is the fraction of substantive hearings in these courts?
2. Out of the hearings in a case, how many are substantive?
3. How much time elapses till a first substantive hearing?
4. How likely is the first hearing to be a substantive hearing?

Definitions and estimates

An understanding of the number and likelihood of such hearings is important to set litigant expectations about the time and costs spent when seeking redress from the court. Regy and Roy (2015) use the term 'failed hearing' in their work on understanding what causes delays at the Delhi Debt Recovery Tribunal (DRT). They classify failed hearings as those hearings that satisfy three criteria: the hearing resulted in an adjournment without any judicial business, the adjournment was avoidable and the adjournment was not penalised. Khaitan et al. (2017) record hearings as 'inefficient' in their study on court efficiency, where the definition of an efficient court is based on whether the court meets set deadlines or not. In their work on cases from the Delhi High Court, they record hearings as 'inefficient' when there is a failure, either because of the court ('insufficient time to hear the case', 'absent judge') or because of either party ('counsel sought time', 'Absent counsel', 'Delay condoned', 'Restoration'). These papers present us with the earliest estimates of non-substantive hearings. Regy and Roy (2017) record 58% of hearings at the DRT as failed hearings. Khaitan et al (2017) record 48% of hearings at the Delhi HC as inefficient. Both suggest that attempts to reduce adjournments could reduce court delays by up to 50-60%, based on these estimates.

The Ministry of Law, Justice and Company Affairs, in the context of fees payable to government counsel, refer to 'Effective hearings' and 'Substantial work'. Effective hearings are where either one or both parties are heard by the court, while 'non-effective' hearings are where 'the case is mentioned and adjourned or only directions are given or only judgement is delivered by the court'. The same memorandum refers to substantial work as 'when the case has been admitted by the Court after hearing of preliminary objections or filing of the affidavits/counter-affidavits etc. by the Counsel'. These definitions guide a distinction between adjournments and non-substantive hearings.

In this article, we broaden the notion of differentiating non-substantive hearings beyond adjournments. Only hearings where there is application of judicial mind to the resolution of the dispute, are classified as 'substantive'. Thus hearings that involve disposals, withdrawal, admission, reporting settlement, are classified as substantive hearings. Adjournments are classified within non-substantive hearings. A reading of the order for an adjourned hearing may simply have a next date given for a hearing. These may be adjournments on account of paucity of time, time sought by parties, non-appearance of parties, wrongly listed or technical glitches. We also classify hearings as non-substantive when orders in which the court gives directions to file pleadings or take on record pleadings. Hearings that involve matters of procedure, without a substantial impact on the resolution of the dispute itself, are taken as non-substantive for a litigant.

The dataset

We hand-constructed a novel dataset, where for a sample of cases, we built the existing case life-cycle by collating all the hearings for a given case. We then read and classified each hearing in the case life-cycle as a substantive or a non-substantive hearing using the approach listed in the previous section. Since each judge records what transpired at the hearing in her own style, parsing and classifying every order necessarily involved a subjective judgement about whether it is a substantive hearing, or not. Therefore, once we had classified orders, we then subjected the classification to a double-blind peer review.

We built this dataset for cases of debt dispute resolution, using orders collected from the websites of the High Court (HC), DRT and NCLT in Bombay. The analysis was done for a random sample of 200 matters from each of the three courts. In these samples, we selected 100 disposed cases and 100 pending cases for each court. The hearing dates ran between 2018 and 2022.

One difference in how orders are uploaded on the Bombay HC versus the two tribunals is important to take note of: each court follows a different timeline for uploading case life-cycle data. On the Bombay HC website, the case appears from the date of filing. For the tribunal courts, the case appear on their respective websites only from the first hearing date, irrespective of the filing date of the case. Since the sample of cases from each court was drawn at random, there could be cases in the Bombay HC without a hearing, while this is not possible with cases in the sample from the tribunal courts. Further, this makes a strict comparison of hearing characteristics at the Bombay HC and the tribunal courts difficult. These differences impose constraints on how various measures are calculated for each court, in order to enable a balanced comparison across the courts.

Findings: What is the fraction of substantive hearings in the three courts?

Table 1: Fraction of substantive hearings to total hearings in three debt dispute resolution courts

Court	Hearings in full sample			Hearings in disposed cases
	Total	Substantive	Fraction		Total	Substantive	Fraction
Bombay HC*	399	192	0.34*		208	139	0.48*
DRT	575	229	0.40		267	116	0.43
NCLT	1135	258	0.23		365	145	0.40

^{*57 cases at the Bombay HC had zero hearings. The fractions reported for the Bombay HC have been adjusted to account for this.}

Table 1 shows the total number of hearings, the number of substantive hearings and the ratio of substantive to total hearings in the three courts. The number of non-substantive hearings can be calculated as (Total hearings - Substantive hearings). This table shows that the NCLT generates the lowest ratio of substantive hearings among the three courts, while the Bombay HC outputs the highest ratio.

Table 1 also shows the data on the ratio of substantive hearings for disposed cases in the three courts. This indicates two features: first, the court generates a higher fraction of substantive hearings in the case of disposed cases. This means that there is a higher number of substantive hearings among hearings for cases that have been disposed. But, there are still fewer substantive hearings than non-substantive hearings. Less than than 50% of all hearings for disposed cases are substantive hearings. This observation holds for all three courts. This suggests that process improvements that simplify administrative hearings or reduce the incidence of adjournments will have a significant improvement in the experience of the litigant in these courts.

The above finding relates to the outputs generated by the courts as a whole, in relation to each other. The litigant focus will be more on what we observe about hearings per case. We examine these questions next.

Findings: What is the fraction of substantive hearings per case in the three courts?

Table 2 shows the summary statistics of hearings per case in the sample. The values presented include the minimum, median, maximum and average number of hearings per case.

Table 2: Number of hearings per case for three debt dispute resolution courts

Court	Hearings			Substantive hearings
	Median	Average		Median	Average
Bombay HC	1	1.21*		1	0.43*
DRT	3	2.88		1	0.82*
NCLT	5	5.68		1	0.91*

^{*Each court has a different number of cases for which substantive hearings could be observed. The counts are 79 cases in the Bombay HC, 57 cases in the DRT and 60 cases in the NCLT with no substantive hearings}

Table 2 shows two values for each court: the average number of hearings per case, and the average number of substantive hearings per case. We see that the Bombay HC has the lowest average number of hearings per case (1.21). The NCLT has the largest number of hearings per case (5.68). This indicates that NCLT has more than 3 times the hearings per case compared to the Bombay HC. It holds more than 2 times the average number of hearings at the DRT which has 2.88 hearings per case, on average.

When comparing the values of the average number of hearings per case to the average number of substantive hearings per case, Table 2 shows that all courts have less than 1 substantive hearing per case, on average. The NCLT has the highest average number of substantive hearings per case (0.91) but it is less than one. The average number of substantive hearings per case for the DRT is almost the same as the NCLT, despite the number of hearings per case being double at the NCLT. This suggests that for every 6 hearings at the NCLT, one is likely to be substantive, while for every 3 hearings at the DRT, one is likely to be substantive. If the number of hearings can be used as a proxy for the cost of filing a case in court, then NCLT is likely to be the lowest benefit to cost for the litigant.

But, the hearing or substantive hearing per case is often not the sole objective for a litigant who approaches court for the resolution of debt. What is also important is the time within which the substantive hearing can be reached. For this, we next examine what is the expected time to the first substantive hearing.

Finding: Time to first substantive hearing

When the case gets a first substantive hearing is an important milestone for a litigant. It is likely to be a hearing in which substantive oral arguments will be made on questions such as the admission of the matter before the court, questions of interim relief that will operate pending the final disposal of the matter, the impleadment of new parties to the matter, the time schedule for the filing of replies and counter-replies, and so on. Setting an expectation on when such a hearing is likely to be conducted after the case is filed, is therefore an important input to preparing for the case.

We use a survival analysis approach to estimate the time to a first substantive hearing after the filing date (Manivannan et al, 2023). Figure 1 shows two survivor functions for each court. The survivor function can be represented as a curve on a graph, which shows the chances of not getting a first hearing / substantive hearing (on the y-axis) against time from filing the case in court (on the x-axis). When the case is first filed, the chance of not getting a substantive hearing is 1 or 100%. I.e., at the outset, all cases experience no hearing / substantive hearing. As time progresses, this number starts to become lower than 1. The `faster' the curve drops from 1, the higher the chances that the case had a first hearing / substantive hearing. On each graph, the darker line shows the chances of a first substantive hearing, while the lighter line shows the chances of a first hearing.

The graph for the Bombay HC (in red) shows that at the end of one year, 40% of the cases have not obtained one hearing. When we focus on substantive hearings only, 60% of the cases have not achieved this milestone. The dark and light line are clearly separated, which indicates that these two values are distinctly different from each other.

The graph for the DRT (in green) shows that 77% of the cases have not got one hearing at the end of the first year after filing. When we focus on substantive hearings only, this is true for 80% of the cases. This means that only 20% of the cases can be expected to get a substantive hearing by the end of the first year from filing.

The graph for the NCLT (in blue) shows that at the end of one year, a little less than 50% of the cases have not got one hearing. When we focus on substantive hearings only, this fraction goes up to 70%. This means that 30% of the cases are likely to have achieved a first substantial hearing in the first year from filing. The gap between the curves for the first hearing and the first substantive hearing is the largest for the NCLT, among the three venues.

These graphs show that the litigant is most likely to get a first substantive hearing within one year of filing from the BHC.

We have chosen to estimate the chances of getting a first hearing and a first substantive hearing in one year after the case has been filed. But these same graphs can be equally used to estimate the chance of a first substantive hearing for shorter or longer periods of time also. For example, the chance of a first hearing within one month of filing the case is the highest at the NCLT, followed by the DRT, and last, at the Bombay HC. Similarly, the graphs show that the chances of getting a first substantive hearing within one month of filing is the highest at the NCLT, up to three months after filing. But if the case is not heard within this time, the chances of getting either a first hearing or a first substantive hearing are higher for a case which is filed at the Bombay HC.

Conclusion

Unpredictable non-substantive hearings constitute a process failure. In this article, we show that for one kind of matter (debt dispute resolution), at three venues, the fraction of non-substantive hearings is 64%, 60% and 77%. From the litigants' perspective of measuring the performance of courts, if a good measure is the fraction of matters that get to a substantive hearing within the first year after filing, we find that this value stands below 50% for all the courts studied.

There is merit in establishing systematic mechanisms for computing such performance metrics. These findings can help litigants estimate the possibilities of events and expenditures, after a case begins. Such information systems would help improve decision-making about suing, about settling, and the choice of venue, for the litigant. A regular estimation of these metrics can also be a useful guide for changes made in court processes, with the understanding that a change in performance metric will be some complex combination of the process change, along with the change in the response of the people who both make up the legal system, and those who use it.

Finally, this work highlights the difference in objectives for which performance metrics need to be designed. While the producer (court) will find it optimal to use the ratio of aggregate substantive to total hearings, the litigant will optimise based on the metric of substantive hearings per case which can lead to a different choice relative to what the court might expect.

References

Nitika Khaitan, Shalini Seetharam and Sumathi Chandrashekaran (2017), Inefficiency and Judicial Delay: New Insights from the Delhi High Court , Vidhi, March 2017.

Pavithra Manivannan, Susan Thomas and Bhargavi Zaveri-Shah (2023), Helping litigants make informed choices in resolving debt disputes, The Leap Blog, 15 June 2023.

Prasanth Regy and Shubho Roy (2017), Understanding Judicial delays in debt tribunals, NIPFP Working Paper 195, May 2017.

Pavithra Manivannan, Karthik Suresh, and Susan Thomas are researchers at XKDR Forum, Mumbai. Bhargavi Zaveri-Shah is a doctoral candidate at the National University of Singapore. We thank Geetika Palta for data support, and Purbasha Panda for her support in reading through the case orders. We also thank two anonymous referees and Ajay Shah for useful feedback and comments.

The journey of Indian finance

by Ajay Shah.

A great tool for making sense of things is a sense of history. At each point in time, we should wonder: what was the situation, what was the problem that was sought to be solved, what was done, how did it work out? This helps in all fields; e.g. we understand special relativity better when we understand the journey of ideas leading up to Einstein.

In this spirit, economic history is central to understanding economics. One of the great failures of modern economics is the loss of the economic history perspective. Most people in a formal education in economics do more convex optimisations than economic history, and that's unwise.

Latika Chaudhary, Tirthankar Roy and Anand V. Swamy invited me to write for their edited book, the Cambridge Economic History of Modern South Asia (forthcoming). I wrote a paper on the journey of Indian finance, starting at 1947. Many odd features of Indian finance make sense when viewed in this economic history perspective.

There is an important kind of economic history, an epsilon-delta tradition, where data, archival texts and documents are precisely pinned down. Alongside this, it is good to also have a strategic view. The paper has such a high level treatment of the journey of ideas, interests and institutions. It is organised as 10 sections on banking, the equity market, other financial firms, capital controls, bankruptcy, monetary policy, household finance, systemic risk, the working of financial agencies and the policy process.

In each of the 10 areas, I try to offer the birds eye view, a sense of what happened and why, of what got done and what didn't, and the forces at work. There is a unified chronology, evaluation and bibliography. Many epiphenomena are glossed over, so as to focus on the essence of finance: the play of time, risk, information, individual optimisation, and principal-agent problems. Each of the 10 area-essays needs to be turned into a full blown economic history paper, including epsilon-delta style work. This paper can help others get started on such research projects.

There are two ways to interpret the journey of Indian finance: a market failure view, and a public choice view.

On one hand, there was a journey of ideas, with learning (in some areas) about how state coercion can counter the market failures in finance. This is a story of building knowledge about the place of the state in Indian finance, and then building state capacity to try to help with useful interventions. The story contains many crises, some useful feedback loops, and some loss of institutional memory.

And then, there was the power conflict. The financial system constitutes the commanding heights of the economy. The Indian state has tried to control the financial system, and direct its resource allocation in ways that suit the state. There has been an ebb and flow of different degrees of state control, and different methods through which the control is achieved. Alongside this, policy makers have sought praise through isomorphic mimicry.

A lot was done in the two phases identified in the paper. But it is far from finished. The basic machinery of markets and financial firms is quite incomplete. State coercion in finance requires fundamental reorientation towards state capacity in addressing market failure, through clarifying the objectives of financial agencies and establishing their checks and balances. These difficulties are an important source of Indian economic underperformance: finance remains central to the journey of Indian economic development. The future of Indian finance lies in building the knowledge and the community for these tasks.

Announcements

DAKSH is hiring for its Research Team

Responsibilities

• Research and writing on access to justice, the working of the justice system, technology, data and the impact of procedural and substantive law on the administration of courts.
• Collating, cleaning and analysis of data.
• Project management including managing external stakeholders and proactively tracking tasks and project deliverables.
• Developing high-quality knowledge products (reports, white papers, working papers) with research findings and disseminating such products to donors, partners and the general public.
• Developing and implementing advocacy strategies.
• Cultivating relationships and building networks with researchers, practitioners, policymakers and technology experts.
• Engaging in public discourse by publishing articles, blog posts, and op-eds.

Education and skills

• Undergraduate degree in law, any other post-graduate degree desirable.
• At least five years of demonstrable work experience.
• Strong research and writing skills.
• Strong analytical skills and the ability to synthesise complex information into clear, actionable recommendations.
• Good interpersonal skills and ability to work collaboratively.
• Willingness to travel.
• Ability to work with strict deadlines.
• Deep passion to make an impact in the field of judicial reforms.
• Knowledge of Hindi or Kannada with verbal fluency – writing skills would be an advantage.
• Prior working experience in legal practice or a research organisation would be an advantage.

This will be a three-year engagement.

Location: Bangalore

Interested candidates may send their CVs and a writing sample to careers@dakshindia.org

About DAKSH

DAKSH is a non-profit working on law and justice reforms since 2015. We have done original research that highlights ground realities and presents systemic reforms required in the law and justice system from a citizen's perspective. DAKSH works at the intersection of data science, public policy and operations research. We are actively involved in creating sustainable solutions to improve judicial efficiency, process, administration and management.

Announcements

Call for Student Research Associate: JDC- Justice Definitions Project

About Judicial Data Collaborative

The Judicial Data Collaborative is a community of researchers, technical experts, academics, organisations and interested people who want to create a platform to exchange ideas and collaborate on judicial data. The Judicial Data Collaborative is convened by DAKSH, a Bangalore-based nonprofit working on judicial reforms and access to justice.

One of the initiatives of the Judicial Data Collaborative is the Justice Definitions Project, in which we are co-creating an interactive, research-oriented wiki. This initiative aims to connect official literature, databases, and research on terms that affect the study of the justice system in India. For more information, visit

Position: Student Research Associate

Project Overview

The Justice Definitions Project aims to compile, organise, and make accessible crucial data about the Indian justice system. This initiative will enhance the understanding of the legal landscape, enabling informed decisions and research. The Student Research Associates will work on the assigned definition terms by collating information relating to it and uploading it on our wiki, in the prescribed format. The Student Research Associates will be guided by the team at DAKSH, and the work will be reviewed by the members of the collaborative. The Student Research Associates will be awarded certificates based on their contribution to the project.

Key Responsibilities:

• Collaborate with a diverse team of researchers, legal experts, and data analysts to curate and validate judicial data.
• Contribute to the creation and maintenance of a comprehensive database related to the Indian legal system and its terminology.
• Engage in data quality control and ensure the accuracy of information.
• Collaborate on data visualization and presentation of research findings.

Qualifications:

• Current enrollment in a recognised undergraduate Law Program. (Third year or Senior).
• Strong analytical skills and a keen interest in legal research.
• Excellent communication and team collaboration skills.
• An inclination towards meticulous and detail-oriented work.

Duration:

This is a part-time position requiring a commitment of approximately 5-7 hours per week, with a flexible schedule to accommodate your academic commitments. The position will be based remotely, allowing you to work from your location.

Benefits:

• Valuable hands-on experience in legal data analysis, research and writing.
• Exposure to the work of a leading public policy research organization.
• Opportunity to contribute to transparency and accountability in the Indian legal system.
• Mentorship and guidance from experienced professionals in the field.

Apply Now

Join us in our mission to drive transparency and accountability within the India by filling out the google form here

Announcements

TrustBridge Rule of Law Foundation and XKDR Forum run a monthly seminar series on "Contracts and Contract Performance". This seminar series builds knowledge and community on the subject of the design and functioning of contracts, both private and public, in the Indian economy.

The first seminar in this series is being held on 28th November, 2023.

Registration

Prior registration required for attendance. Register here.

Venue

TrustBridge Rule of Law Foundation, 2nd Floor, B-40, Voluntary Health Association of India (VHAI), Qutab Institutional Area, New Delhi-110 016

Program

17:00 -- 17:10	Opening remarks
17:10 -- 17:45	Session 1: Mediation as a mechanism for contractual disputes resolution
	Presenter: Karan Gulati and Saurabh Modi, TrustBridge
17:50 -- 18:25	Session 2: Delays in S. 138 NI Act cases: are cheques an effective lever of contract performance
	Presenter: Siddharth Raman, XKDR Forum
18:25 -- 18:30	Closing remarks

Announcements

TrustBridge is an organisation that works on improving Rule of Law for better economic outcomes. We focus on understanding the gaps in the existing legal and regulatory framework, evaluating how they impact economic growth, and studying the various ways that these could be improved upon. We aim to undertake legal, quantitative and policy oriented research and dissemination that will inform principles and evidence-based policy making. We believe that implementing ideas that emerge from our research will help bring us closer to our objective of improving the Rule of Law. Our work is in the areas of Energy Transition, Financial Markets, Contract Performance in government and private contracts, and Governance in the start-up ecosystem.

An area of work for TrustBridge is to understand how contracts function and how frictions in contracting can be reduced to achieve better economic outcomes.

Some of our work in this field includes:

• Improving judgment enforcement: Let judgment creditors file insolvency resolution applications, Karan Gulati and Anjali Sharma, October 2023.

• Reducing challenges to arbitration awards: lessons from court data, Madhav Goel, Akshay Jaitly, Renuka Sane and Anjali Sharma, October 2023.

• Litigation in public contracts: some estimates from court data , Devendra Damle, Karan Gulati, Anjali Sharma and Bhargavi Zaveri, May 2021.

TrustBridge is looking for one full time researcher to work on its projects in the contracts space. The position is based in Delhi.

Job requirements for Policy Research Associate position

As a policy research associate, you will work on project deliverables under the supervision of a project lead. You will be expected to review laws and government policies, undertake literature survey and quantitative analysis, write blogs, articles and papers and interface with collaborators and stakeholders.

The requirements for the role are:

• An academic background in the fields of Data Science, Economics, Engineering, Management and/or Public Policy.

• Two to three years of work experience, preferably in a research intensive organisation. Candidates with more experience can be considered for mid-senior level roles.

• You must possess high quality research skills and some understanding of statistics and quantitative analysis.

• You must have demonstrable writing skills, preferably in the public policy domain.

• Coding skills and a functional understanding of any one programming language, such as R and HTML will be an advantage. A working knowledge of LaTeX and Linux are preferred.

• You must be comfortable with working in an interdisciplinary research environment consisting of people from varying backgrounds such as economics, law, public policy and data science. You should be curious and passionate about research and willing to work on outputs independently as well as in teams.

The remuneration offered will be commensurate with your skill and experience and will be comparable with what is found in other policy and impact institutions. Interested candidates must email their resume to info@trustbridge.in with the subject line: Application for "Research Position: Contracts"

Author: Karan Gulati

Karan Gulati is a Researcher at the TrustBridge Rule of Law Foundation, New Delhi.

On this blog:

• Improving judgment enforcement: Let judgment creditors file insolvency resolution applications, 26 October 2023.
• Litigation in public contracts: some estimates from court data, 26 May 2021.
• Grievance Redress by Courts in Consumer Finance Disputes, 23 March 2021.
• Why do we not see class-action suits in India? The case of consumer finance, 3 May 2020.
• India’s low interest rate regime in litigation, 11 March 2020.
• Delays in deposit insurance, 9 April 2019.