Status Of Law Clerks?

As Law Clerk is a full-time work, they are not supposed to engage themselves in any other job during tenure and hence they are supposed to suspend their practice as advocates once they are appointed. The reason behind the said suspension is, if they are practicing and working as a law clerk simultaneously, they might be biased or end with conflict of interest. The Supreme Court and all the High Court prescribes suspension of practise as a condition to be fulfilled prior to appointment. However, the issue here is how the experience should be treated? Since the suspension of practice will have an effect of declaring the person as “non practicing advocate”, they will be ineligible to apply when any post requires such number of practice experience. Very recently Pondicherry Judicial Service Department called for the post of Civil Judge (Junior division), in that two category of law graduates are eligible to apply. One is Fresh law graduates who have completed the law degree within three years prior to the date of notification and other one is Advocate with the practise experience of not less than three years. This is same to that of Tamil Nadu State Judicial Service Rules, 2007. In such case, a law clerk who does not fall under fresh law graduate category and also who doesn’t have 3 years of practice experience due to suspension of practice will be ineligible to apply to the post. This ineligibility due to suspension of practise seeks for review of Guidelines of Law Clerks in High Courts.

Comparison with Supreme Court Guidelines:

Firstly, the Law Clerks in Supreme Court are also not allowed to practice as advocates in any High Courts; however, their experience as Law Clerk-Cum- Research Assistant is counted as experience for the eligibility for Advocate on-records examination. The relevant part of the Scheme for Engaging Law Clerk-cum-Research Associates on Short-Term Contractual Assignment in the Supreme Court of India – April, 2023 is extracted below:

“11. Eligibility for Advocates-on-Record Examination

(i) The period during which a Law Clerk is attached to a Judge’s office or in the Registry shall be counted for the purpose of eligibility requirement for the Advocates-on-Record examination.”

For the Advocate-on-Record Examination as per Rules 5 (i) and (ii) of Order IV, Supreme Court Rules, 2013 and Regulation 2 of the Advocate-on-Record Examination Regulations the eligibility criteria is 4 years of practice as an advocate and one year continuous training under the Senior Advocate-on-Record. But this provision of counting the experience similar to that of practice is not found in High Court.

Roles are similar to that of Junior Advocate:

The Supreme Court and High Court engages only the fresh law graduates with an object of attracting the young law graduates into judicial process. The nature of work and responsibilities of a law clerk are very similar to that of the practicing Junior Advocates, except the representation and appearance made before the Court. A law clerk not only assists the Judges in Judicial work but also in administrative work. Their duties are (i)Reading of case files preparation of the case including case summary and notes, chronology of events, (ii) Identifying facts and issues, questions that may arise or may need to be addressed,(iii) Research work including case Laws, Articles, Papers and in assisting in preparation of judgments, corrections and editing, (iv) Presence in Court during hearing of cases, notes of arguments, research on citations. (v) Maintaining case files, (vi) Preparation of research or academic papers, speeches assistance in important conferences, (vii) Statistical reports including timely delivery of judgments, (viii) Maintenance of books, other research papers and materials and such other works entrusted by the Judge to whom the Law Clerk is attached from time-to-time. Thus, nature of work of the Law clerk is very similar in nature of that of Junior Advocate.

Suggestions and Conclusion:

Thus, the question of where do law clerks stand in the line of Civil Judge Aspirants arises? Whether they should be stand in par with advocates who have 3 years of practice experience or with fresh graduate category? When a fresh law graduate without any practice experience is eligible to apply for the post of Civil Judge, a Law Clerk cannot be held to be ineligible when he/she worked under the Judges and gained an experience in terms of content and practice of Law. During the tenure a law clerk gets an opportunity to understand the thought process of a judge and observe in-depth about the functioning of High Courts.

It is suggested that the Guidelines for engagement of Law Clerks-cum-Research Assistants in all the High Court shall be revised uniformly to include a clause stated as follows:

Eligibility for Civil Judge Examination

The Period during which Law Clerk is attached to a Judge shall be counted for the purpose of eligibility requirement for the Civil Judge Examination.

The suspension of practice adversely affects the right of otherwise eligible Civil Judge Aspirant, when they are nowhere different from the practicing junior advocate. Moreover, Civil Judge Examination are not conducted every year in most states, the number of opportunities to attend Civil Judge Examination is less. Hence, it is high time to re-consider to count the law clerk experience as practice experience for the purpose of Civil Judge Examination.

The author is an Advocate practicing at the Madras high court. Views are personal.