Law Clerkship With Supreme Court Of India- How It Works

Every year, the Supreme Court of India through its registry advertises with respect to engagement of "Law Clerk-cum-Research Assistant" on short term contractual assignment. The term "Law Clerk" is distinguishable from the term "Clerk" which refers to secretarial or clerical job. In legal profession, the term "Law Clerk" refers to specific work assignment which requires giving assistance to the concerned judge in terms of research, writing and so on.

The engagement is for the benefit of the judges of the Supreme Court to assist them in discharge of their judicial duties, and to initiate, law graduates to complexities of the judicial system. In the words of Ward and Weiden who begin by stating in reference to United States Supreme Court (SCOTUS): "Clerking for a U.S. Supreme Court justice is the most prestigious position a recent law school graduate can attain".

A clerkship tenure has also been a great learning experience for many law clerks, both in terms of the content and practice of law. The clerk gets to work in the headiest environment to which any young lawyer could aspire and enjoy the luxury of open, robust, and unbridled debate about our nation's most pressing legal issues, not only with the Justices, but with the sharpest legal minds of his own generation.

However, as the clerkship program was thrown open to the young law graduates, its appointment process has been marred by controversy. The appointment process has been trenchantly criticized due to its opaqueness and lack of transparency in the case of Phaguni Nilesh Lal v. The Registrar, Supreme Court of India by the Delhi High Court. It struck down then existing Law Clerkship scheme on the ground that it failed to fulfill the mandate of Article 14 of the Indian Constitution. Consequently, the Supreme Court of India prepared a revised clerkship scheme (dated January 8, 2015), which laid down detailed guidelines for engaging law clerks including the recruitment process, the duties/responsibilities of law clerks etc.

Appointment With Special Reference To 2021-22 Assignment Of Law Clerks With The Supreme Court Of India

The Supreme Court Registry, in the month of January every year, invites application for the recruitment of law clerks for an assignment session. However, the Chief Justice of India, if so considers appropriate, may direct the Registry not to invite applications in any particular year.

Law Clerks are engaged purely on short-term contractual basis initially for the duration of the assignment session. The term "assignment session" means the period from re-opening of the court after summer vacation till the closure of the court for summer vacation for next year. In other words, tenure of a law clerk is one year until it is extended by the Judge.

The Law Clerks are given a fixed consolidated stipend of Rs.65, 000/- per month without any dearness allowances/perquisites.

Before inviting applications, the registry ("administrative division of the Supreme Court") will ascertain the number of law clerks required for an assignment session from the Judges through their Private Secretaries. Besides, up to a maximum of six law clerks may be kept in the reserve pool for meeting any emergent requirements. On the contrary, in 2021, more than 100 law clerks were selected which goes against the stipulation in the revised scheme, which has kept the number at maximum 6. In the initial six months of the finalization of the recruitment process, only 30 candidates were assigned the Judges. The other 70 candidates were still awaiting the response from the registry. It is problematic in the sense that the assignment session starts with the reopening of the court after the summer vacation and till the closure of the court for summer vacation next year. For instance, Mr. Z, who is selected and emplaned for the law clerkship with a rank 70. He is assigned a Judge in the month of April. In the scheme of things, Mr. Z's service is only limited to 1 month as the service of the law clerk is only required till the closure of the Supreme Court in May. The whole purpose of assignment is, thereby defeated, if due to the incompetency of the registry, a candidate loses his chance to work as a law clerk for an assignment session. For many, clerkship with a Supreme Court Justice is a "once-in-a-lifetime-opportunity".

After inviting application, a screening test is conducted followed by a personal interview, which is conducted by a committee of three Judges. The candidates are asked questions relating to law, academic record and extra-curriculum activities.

Thereafter, a merit list is drawn on the basis of marks secured by a candidate in written examination and the interview. The committee, therefore, will recommend sufficient number, in order of their merit, to be kept on the panel of Law Clerks. After the receipt of recommendation, the CJI will approve the formation of a panel as per requirement for the assignment session. In practice, the requirement principle is not followed in spirit. The Supreme Court registry recruits more law clerks than it is actually required. For example, for the assignment session 2021-2022, it recruited more than 100 candidates for the empanelment for the law clerk. The clause "as per the requirement" means that the Supreme Court requires 'n' number of candidates for their services and thus, the 'n' of law clerks would be assigned the judge. It does not happen in practice, where the law clerks who have secured a good rank in screening test are assigned judges on priority basis.

Each Judge of the Supreme Court are entitled to have services of maximum of four law clerks. It is mandatory for a Supreme Court judge to engage at least one law clerk from the approved panel. Other three law clerks can be engaged by the Judge as candidates of his choice. It means that the Judge may select any candidate of his choice, who may be or may not be from the panel.

Clause11 (ix) of the revised scheme stipulates that if the candidate is asked to join the chamber of a particular judge, he will not subject himself to another round of interviews. However, in practice, a candidate when he is referred to a Judge for attachment, he is again interviewed by the concerned Judge. Based on his/her performance, a candidate is selected by the Judge. The Judge has a discretion to either accept his service or to reject his candidature.

Flawed Selection Process Vis-À-Vis Constitutional Mandate

In the case of Phaguni Nilesh Lal v.Supreme Court of India, the Delhi High Court struck down the Supreme Court Law Clerkship scheme 2013 which rendered preferential treatments to students from National Law Universities (NLUs) while rejecting the candidature of students from other law schools on the ground that it failed on the touchstone of article 14 of the Constitution. The Single Judge order was challenged. However, in the meanwhile, the Supreme Court came up with revised scheme to bring it in tune with equality. The law laid down in Pahuguni Nilesh still holds good.

It is pertinent to state that the revised scheme, 2019 has no provision of deputing a law clerk at the registry. In practice, the Supreme Court registry is appointing the law clerks to work with departments housed inside the Supreme Court premises. Many Law Clerks are currently working with the Supreme Court Legal Services Committee, Central Public Information Office, Centre for Research & Planning, which do not have any requirement of law clerks.

The revised scheme, 2019 has not stipulated that the law clerks could be assigned the administrative work at the registry. The scheme of the Law Clerkship program is that a Law Clerk is expected to work with a Judge, assisting him in discharge of his judicial duties, however the appointment of law clerks with departments in registry goes against the scheme of Law Clerkship in general, and revised scheme, 2019 in particular.

Proposed Solution To The Recruitment Process

The screening test to select law clerks consists of Multiple Type Questions (MCQs) from Criminal Procedure Code, Indian Penal Code, English, General Knowledge etc. The nature of the job requires research skills, analytics, team work and so on. The existing screening test does not test a candidate's ability to conduct research, writing etc. Therefore, one's CV, writing samples, cover letter/personal statement, and/or prior work experience may be considered as the criterion on which a candidate must be assessed.

The author is a Law Clerk-cum-Research Assistant to Hon'ble Mr. Justice Ajay Rastogi, Supreme Court of India. Views are personal.