The 129scene in a court hall, about 10 minutes before proceedings begin: lawyers walking in and out hurriedly, some casually reading from their files, and others, nervous newcomers, looking all at sea; litigants waiting anxiously, hoping their matter will move ahead today; one person, right below the dais, stacking files, answering questions, entering case numbers, an eye constantly on the clock, anticipating the judge’s arrival. This person, officially called the ‘bench clerk’ (sometimes truncated to a pithy ‘bench’), is the closest possible observer of proceedings in the court. He interacts with every stakeholder, whether litigant, lawyer, police, or judge, and his importance cannot be undermined.

Given their vantage point, bench clerks (or court officers, as they are called in the High Court of Karnataka) are veritable mines of information. I interviewed two court officers and two clerks each from the civil and criminal courts in Bengaluru,¹ to elicit their views on what they observe closely every day — how the courts work.

Over several cups of tea after their shifts ended, we talked about how they started as clerks, career prospects, pressures of work, and most significantly, the sheer volume of cases pending before every court. Their views on pendency and delay were however aired only on the promise of absolute anonymity.

What Does a Bench Clerk Do?

Duties

Every day, before proceedings begin, the bench clerk prepares the files of cases that are slated to be heard, placing them in the same order as the cause list. Once the judge walks in, the clerk calls out each 130case number from the list. (Some clerks use a clear singsong voice; others mumble and hurry through.) After calling out each case, the clerk checks to see if the parties or lawyers are present, as he places the file before the judge. While lawyers make their submissions, the clerk assists the judge in finding the documents he needs. In between hearings, the clerk notes the date of the next hearing and the stage to which it has been posted in the ‘court diary’. Once the proceedings for the day end, he checks the files to see all necessary elements are entered before sending them back to the ‘pending branch’ where they are stored. He then accounts for the files for cases posted the following day, which are usually sent to each court hall in the afternoon. As the last but important task, he hands over the court diary to the typist, who will make note of the dates to which the cases have been posted.

These tasks constitute about 80 per cent of a bench clerk’s duties. His work hours are typically between 9 am and 7 pm.

Qualifications and Recruitment

The Karnataka Public Service Commission recruits bench clerks in Karnataka, as first division assistant (FDA) or second division assistant (SDA) clerks, through a written exam. To be eligible, the applicant must have passed the 10th standard.

The court officers in the High Court of Karnataka are SDA/FDA clerks who have completed their LLB or have a law degree. Some court officers in the High Court have even got master’s degrees in law.

Training

There is a training institute located in the city civil court complex for bench clerks, but only 20 per cent of them are selected for training, which usually lasts a month. The rest of them learn through experience. None of the six clerks I spoke to was trained in the institute, but they all said that those who were trained by the institute were extremely lucky, as it is immensely beneficial. They said that the training must be made compulsory in order to prevent the difficulties they face during the initial days of their posting.

Novice court officers in the High Court are trained in the High Court premises.

Work Pressure and Work Satisfaction

The bench clerks in the lower courts opined that they were overburdened at least three days a week. Their work had only increased over the years. One of them mentioned that a newly appointed bench clerk is burdened with the duties of his colleagues too. Work distribution is extremely poor.

Job security, salary, and a chance to learn seem to the three common aspects that attracted them to this position. A couple of them, however, mentioned that they had taken up this job only to make ends meet at home. When asked about work satisfaction, they seemed to be happy with what they were doing; a couple of them even said they were extremely satisfied.

Dealing with Advocates and Litigants

When asked about the nature of interaction with litigants, bench clerks responded that litigants usually approached them when their advocates were absent for the hearing. Litigants wanted to know if their case has been heard and what had happened during the hearing.

Advocates on the other hand usually approached them to take a look at the order sheet² or a particular document in their case files. More significantly, 131advocates sometimes requested the clerks to give them time before calling out their cases the second time, after they were passed over.³

How Much Time Does a Case Spend in Court?

Civil Court

When asked how long a civil case takes to be first heard from its date of filing, two bench clerks answered that it varies from a day to a week. Where urgency is indicated, that case is heard on the day it is filed, but in the normal course, it could take about eight days. When I enquired about the number of days between two hearings, they pointed out that it depends mostly on the stage and age of the case. On an average, if the case is new, it is heard once in 35–50 days. If the case is an old one, it is heard once in 15–20 days. They opined that it takes a minimum of two to three years for a case to be disposed, while the maximum can go up to 10 years, or even longer — as one of the clerks pointed out, a couple of cases have been pending for more than 15 years in his court.

Criminal Court

When asked how often a case is heard, bench clerks at both the criminal courts pointed out that on an average it was between 25 and 30 days, but depended on the stage of the case. They were of the opinion that a case takes a minimum of two years and a maximum of 12 years to be disposed of. When I enquired whether the rule of ‘bail is the norm, jail is the exception’ was being followed, they opined that the rule is definitely adhered to. In a bail hearing, oral arguments are heard and more often than not bail is granted, but on the condition of a cash or personal surety. Judges are very particular about sureties and they make sure adequate surety is furnished before the accused is released on bail.

When asked about the oldest case, a clerk from the magistrate’s court mentioned that one was pending for more than 13 years.

Two bench clerks mentioned that the court more often than not accepts all the charges pressed by the police, as the charge sheet is usually prepared after consulting the public prosecutor. When asked about the percentage of witnesses turning hostile, one of them was quick to point that close to 15 per cent of witnesses turn hostile. Three clerks mentioned that habitual offenders have a very casual attitude and they do not take proceedings seriously, whereas the accused being charged and produced for the first time are extremely nervous.

I was also informed that in-camera proceedings occur only in cases under the Prevention of Children from Sexual Offences Act, 2012.⁴ During an in-camera proceeding, the court hall is cleared of everyone except the judge, lawyers from both sides, victim, and bench clerk.

All the bench clerks I interviewed said that the media fails to report cases properly. There is a certain degree of distortion of facts, and trial by media is rampant, with the accused more often than not being portrayed as convicts. They mentioned several instances of being approached by the media to reveal insider information.

High Court

One of the court officers mentioned that 60–70 per cent of cases in the High Court of Karnataka comprise writ petitions. When I enquired about when a writ petition is first heard after being filed, I was informed that in the normal course it takes about 132six days, and urgent cases are heard on the same day. The lifetime of a writ petition in their opinion varied, from a minimum of one day to a maximum of five years. Specifically, they pointed out that company matters (mostly winding-up petitions) take 6–12 months.

Who’s Responsible for Delay?

When asked about judicial delay, their first response was that they couldn’t talk about it. After being promised anonymity, five of the six clerks I interviewed mentioned that it was extremely worrying to see the delay in cases. They attributed reasons to all the stakeholders: litigants, advocates, investigation agencies, and judges. Some of the reasons they listed are below.

Delays by Litigants

Litigants come to court at the very first instance of a dispute, however small or frivolous the reason may be, they felt. Having filed the case, they sometimes look to prolong a case, on grounds of ill health and personal tragedies, especially when it is time to depose. Two clerks pointed out that 30–40 per cent of witnesses do not turn up on the given date. Another tactic used to delay the proceedings is when one litigant insists on settling the matter outside court. More often than not, judges encourage litigants to settle the matter and accordingly convince the opposite party to try alternate methods of resolution. But when one of the litigants is insincere and adopts this method to delay proceedings, time is lost in trying to settle matters.

Bench Hunting and Lack of Preparation

Bench hunting is one of the major reasons for delay, the clerks pointed out. This is when lawyers wait for a ‘favourable’ judge to be posted to hear their case. Some clerks mentioned that lawyers ‘arrange’ for files to be ‘misplaced’, so that a particular judge does not hear their case. The file automatically surfaces once a new judge (read favourable judge) is appointed. Additionally, according to the clerks, about 70–80 per cent of lawyers do not come prepared to court, which forces them to press for an adjournments. They called such methods entirely unfortunate.

Incomplete Investigations

In most criminal cases, the state police investigate cases. The clerks mentioned that the police take a long time to serve summons to witnesses, since they need to trace them, and this contributes to delay. They also said that often police fail to file the charge sheets within the allotted time, on the grounds that investigation is incomplete. One of the clerks was of the opinion that in approximately 80 per cent of cases, charge sheets are not filed on time.

Adjournments, Judicial Knowledge, Efficiency, Caseload

The clerks I interviewed pointed out that 50–60 per cent of the cases listed for the day get adjourned (without progress), and in their opinion, only 20–30 per cent of them are warranted. In their experience, adjournments are granted easily, if the case is new. But when the case is more than four years old, adjournments are discouraged and reasons are recorded in the order sheet.

They also pointed to instances when judges, who do not possess adequate knowledge or experience 133about a particular branch of law (for example, intellectual property law), take more time to dispose of matters, when compared to judges who are well versed in that subject.

The clerks also noted that an efficient judge, in their opinion, hears more cases than he adjourns. But they also struck a note of caution, saying that there is a certain capacity to each judge, and he cannot push himself beyond a certain limit. Typically, a minimum of 40 and a maximum of 140 cases are listed every day. According to the clerks, when there are more than 80 cases a day, it is near impossible for any judge to do justice on all of them.

Solutions

When asked about possible solutions to fix delays, all the six bench clerks were of the opinion that the public should look to settle matters by alternative means of dispute resolution, such as negotiation and mediation. They also opined that the public should stop filing cases for frivolous matters, which according to them are more a result of clashing egos than real causes of action. They also believe that if the public were informed about the time a case can take in court, they would definitely be deterred from coming to court!

The clerks opined that if advocates picture themselves in the place of litigants, and look to understand the problems of litigants, they would handle things differently.

They also pointed out that the police need to complete their investigation as soon as possible, so that charge sheets are filed on time. The police need to be efficient in serving summons to the witnesses as well. Three bench clerks suggested an increase in the strength of the police force as a solution.

When asked if increasing the strength of the number of judges was a solution, four clerks said it would not be of great benefit, while the other two did vote for the idea. The former opined that if judges hear matters to the best of their capacity, delays would be reduced significantly. They reminded me, however, that that there has been a change in attitude towards adjournments, which are now not granted easily. Thanks to orders from the High Court and Supreme Court to dispose of cases within six months, judges are less inclined to grant adjournments. They also cautioned that while the change in attitude is partly because of awareness amongst public about this issue, there is the danger of it fading out soon.

When I enquired whether computerisation has played a role in reducing delays and their work, all the six of them agreed. In the lower courts, computerisation has helped with the latter in particular, especially preparing cause lists, and in the High Court it has helped in finding records, orders, and sorting information about cases.

Memorable Incidents

When I asked about an incident that had stayed in their memory, three clerks recalled being so impressed by lawyers who had argued their case with such impeccable quality that they had almost been tempted to quit their jobs and practise as lawyers. One of them recalled a case where the accused was being tried for cheating, and his lawyer argued that case so well that the judge discharged the accused.

On the negative side, memorable incidents about being taken to task by judges for not doing a particular job well. One of them recalled an incident where he was appointed as a typist when he had hardly any experience in the court. As a result, he was not able to match the pace of the judge, which had resulted in embarrassment in open court.

134A couple of clerks recalled incidents where litigants had fought in court over a property dispute. One of them mentioned an incident where two brothers almost came to blows when it was turn of each of them to appear as a witness.

Off the Record

After talking to the clerks closely, I have learned that they are fairly humble and down-to-earth individuals, who strive hard every day without commensurate wages. If you interact with them after court hours you will know that it is stress and workload that makes them look officious in the court.

When I asked about the one thing that bothered them during their work hours, pat came the reply — lack of respect. They feel their work in court is appreciated the least. One of the bench clerks even mentioned that he is preparing to be a civil servant, having missed out in his previous attempt by a few marks. He hopes to make it this year.

Notes

1. Several clerks I spoke to excused themselves on grounds of excess work, while a couple of them answered so blandly that nothing constructive could be deciphered from them. All of them were decidedly guarded on the question of judicial delay and pendency.

2. This contains the orders passed by the judge in each case, records the progress of a case, and has other related remarks.

3. In the lower courts, all cases in the cause list are called out in the first round. Some matters, which are to be heard in detail, for example, to record evidence or hear oral arguments, are passed over. Passed-over cases are heard after the first round is completed — they are usually called out in the same order as originally listed.

4. In-camera proceedings occur only in two court halls in the City Civil Court Complex, Bengaluru.