Clerkships in the Indian Supreme Court: Some Reflections and Suggestions
In recent years, the Supreme Court of India has gradually scaled up the practice of recruiting recent law graduates to serve as research assistants under the sitting Justices. The notification inviting applications for these ‘Law Clerk-cum-Research Assistant’ positions is usually sent to law colleges in December each year and students in their final year of legal studies (both LL.B. and LL.M. programmes) are eligible to apply for the same. As per the present practice, the Registry of the Supreme Court invites the short-listed applicants for an interaction with a committee consisting of two sitting Justices (usually in April or May) and the chosen applicants are then assigned to work under a sitting Justice. While law clerks usually serve for nearly a year (the cycle running from July to May) there have been instances where some have worked for longer or shorter periods with the consent of their supervising Justice. To take my own example, I served as a law clerk under the then CJI K.G. Balakrishnan for nearly two years, i.e. between July 2008 and May 2010. In this note, I would like to offer a few reflections on my clerkship experience with the hope that they might be of some use to those considering this as a transitory option before making definitive career choices. Towards the end of this note, I have outlined some suggestions that may be considered for streamlining the recruitment of law clerks.
From the perspective of law students, one of the main incentives for applying for clerkships is to boost their chances of pursuing higher studies at prestigious foreign universities. Some others apply with the hope that the clerkship experience will enable them to gain a better understanding of the judicial process before making a foray into litigation. While it is an oversimplification to view this option in purely instrumental terms, the above-stated motivations cannot be dismissed since pursuing a clerkship entails some opportunity costs especially when compared to other lucrative options in the legal services market. Needless to say it is up to the individuals involved to extract the most value from their short period of service. It is undoubtedly a great opportunity to observe the nuances of appellate litigation, decision-making and the institutional structure of our apex court.
At present, the clerkship system is still in a nascent stage and many of the Justices often hesitate to entrust their law clerks with substantive research tasks. While most of the Justices have started recruiting at least one or two law clerks every year, there is a widespread feeling that the roles and responsibilities of the law clerks are not sufficiently clear at the outset. While each Justice has a distinctive style of functioning, it is important for those recruited as law clerks to have a coherent idea of what they are expected to do. Based on my own experience as well as interactions with other law clerks, the main research tasks can be outlined under three categories, namely (i) preparation of briefs on facts and legal questions in freshly instituted matters, (ii) assistance with preparation of orders and judgments and (iii) preparation of speeches, articles and notes on contemporary legal developments.
Those who are familiar with the scheduling of cases in the Supreme Court are well aware of the fact that most of the Justices’ workload is attributable to the preparation required for initial hearings in cases (‘miscellaneous matters’) that are usually listed for Mondays and Fridays every week. On average, each bench has to process nearly 40-50 freshly instituted matters every week. It goes without saying that this is a laborious task that requires immense concentration and attention to detail. A large portion of the miscellaneous matters filed in the Supreme Court are dismissed at this preliminary stage, either without assignment of reasons or by way of short orders. It is only a relatively small portion of these miscellaneous matters which are admitted for a subsequent hearing on merits (‘regular hearing matters’). Even though the decision-making at this stage is made after hearing brief submissions by the lawyers appearing in Court, the Justices usually make up their minds about the merits of the case during the preparation time itself. It is in this context that the law clerks can be relied upon to prepare summaries of the materials on record and short memoranda on the contentious issues. Furthermore, the written submissions made by the parties at this initial stage are usually not very well fleshed out and hence the Justices can profit from able research assistance, especially to verify and search for applicable principles and precedents. While most Special Leave Petitions (filed under Article 136 of the Constitution) are easily dismissed for raising frivolous questions, occasionally the Justices encounter cases that frame important legal questions. It is mostly the cases of the latter variety that are admitted for hearings on merits.
In comparison to freshly instituted matters, the scope for reliance on law clerks is relatively lesser when it comes to the regular hearing matters that are usually listed on Tuesdays, Wednesdays and Thursdays. At this stage, the lawyers appearing on behalf of the interested parties are involved in extensive oral arguments before the respective benches and the same are further supported through written submissions. While this is not the proper forum to comment on the inefficiencies of the current institutional practices pertaining to regular hearing matters, it will suffice to say that Justices usually gather enough material from the submissions made by the parties. In the process of writing substantive judgments, most of our Justices are also conscious about confining the basis of their decisions to the materials submitted during the hearings. Unlike Constitutional Courts in some foreign countries, most judges in our appellate courts are less likely to pursue their own research and rely on materials other than those cited by the lawyers who have argued before them. Given the heightened importance of decision-making at this stage, the involvement of law clerks is likely to be less pronounced. However, some Justices have been known to ask their assistants to prepare first drafts or notes on contentious questions. The involvement of law clerks in the preparation of substantive judgments can prove to be a game changer since they are more likely to consult academic writings as well as precedents from other jurisdictions that might have escaped the attention of those who have argued the case. In this sense, the generational difference between the Justices and their law clerks also corresponds to increasing familiarity with a wider array of resources for legal research. Law clerks are far more likely to be adept at using electronic databases for locating commentaries and precedents. At the same time, the expansion of inputs into judgment-writing can also attract the skepticism of practicing lawyers who might feel shortchanged if judgments travel beyond the submissions and cite materials that the latter are not familiar with. Regardless of such apprehensions, it must be reiterated that while the substantive decision-making is necessarily informed by the accumulated experience of the judges in each bench, the involvement of much younger research assistants in screening documents and submissions has created considerable efficiency-gains vis-à-vis preparation time as well as disposal rates. It would indeed be futile and counterproductive to point to the involvement of law clerks as a cause for concern about the quality and integrity of decision-making by our apex court.
As outlined earlier, law clerks are also frequently asked to prepare speeches or notes when Justices are invited to make presentations at academic conferences and public lectures. Most of these extra-judicial statements tend to dwell on themes such as improving access to justice, bench-bar relations, legal aid and the promotion of dispute-resolution methods such as mediation. The channels for learning are of course not confined to the tasks mentioned above. Apart from the broader understanding of judicial process, the clerkship experience also exposes one to institutional processes such as those related to filing of cases, listing of matters, the perceived impact of bench-composition on decision-making and the different methods of case-management adopted by the respective benches. The multi-bench structure of our Supreme Court has led to the creation of institutional dynamics that are quite distinct from apex courts in other countries which either tend to sit en banc (i.e. all judges sitting together to decide a case) or have fewer panels. Furthermore, there are also numerous opportunities to observe the country’s most prominent lawyers as they present arguments.
However, this note will be incomplete if I only choose to dwell on the nature of tasks assigned to law clerks. As outlined earlier, I will now turn to some suggestions with regard to the recruitment of law clerks in the first place. One of the difficulties faced at present is that the top students from the empanelled law colleges are usually not interested in judicial clerkships since they have direct access to more lucrative career options. This disparity is even more striking when one takes note of the fact that in many foreign countries such as the United States of America, Canada, Australia and South Africa among others, judicial clerkships attract the best law graduates in spite of the availability of lucrative career options. While I understand that it may be difficult to increase the stipends paid to the law clerks (for the 2011 intake the pay is Rs. 25,000 per month) some decisive steps must be taken to convince law students that undergoing a judicial clerkship can yield benefits in the long run. For starters, the notification inviting applications can clearly mention that applicants stand to gain a lot in terms of understanding the judicial process as well as improving their prospects for higher studies and professional growth. We must remember that final year law students at most of the prominent law colleges in the country are being actively pursued by leading companies and law firms, both from India and abroad. In this setting, the Supreme Court should at least make an effort to have its presence felt so as to attract the best law students. Another suggestion is that of broadening the pool of applicants by allowing recent graduates with a few years of work-experience to apply for these positions. Their applications can be accepted on a rolling-basis throughout the year. The same practice is followed by courts in many foreign nations and there is no principled reason for confining the intake to final year students. This can be easily done by uploading a call for applications on the Supreme Court website. It goes without saying that many law graduates who are unsure about their career choices may benefit from clerking in the Supreme Court in the interim. However such an expansion of the applicant pool should not extend to those who have already worked in the chambers of lawyers who regularly appear before the Supreme Court.
Since the Justices are unquestionably overburdened with the large number of freshly instituted matters each week, there is often the risk of inadequate attention being given to the preparation of substantive orders and judgments in matters reserved after regular hearing. While this observation may perhaps not be true for all Justices, there is no doubt that Justices need to be very confident about the abilities of their law clerks before delegating important tasks such as the preparation of drafts for judgments. Needless to say, such tasks require the capacity for prolonged study and rigorous analysis. However, the present method of recruitment of law clerks does not account for these skills. It is better to recruit a few motivated and competent law clerks every year rather than recruiting a large number of applicants who may be indifferent to the tasks assigned to them. While the short-listing of candidates on the basis of their resumes is a necessary filter, it would be better if the candidates are also required to send writing samples (either a term paper or a thematic essay). Questioning on the basis of such writing samples is an effective method for testing the applicant’s familiarity with a particular topic as well as the ability to defend one’s views. Such a process will enable the Committee of Judges to conduct a more meaningful interview and accurately gauge the candidates’ capacity for research and analytical writing.
It would also be useful to hold an orientation session at the beginning of the Supreme Court’s term, i.e. during the first week of July each year. As I mentioned earlier, most of the applicants are clueless about the tasks expected from them. It is only after several weeks that they are able to work out a comfortable equation with their supervisors, often through trial and error. While the specific responsibilities will depend on the individual working style of each Justice, the law clerks should at least be given a broad idea of what to expect. This entails that the applicants must be clearly told that they will be expected to prepare briefs for freshly instituted matters as well as rendering assistance in the preparation of orders and judgments. This can be easily achieved through an interaction-cum-orientation session that can be held a few days after the fresh batch of law clerks has been assigned to the respective Justices’ offices. This session can be conducted either by an official from the Registry or by those who have served as law clerks in the past. It should also be kept in mind that the law clerks mostly work at the residential offices of the Justices and are expected to maintain a high degree of confidentiality about their involvement in pending cases. This means that they usually work in an environment of relative isolation from their immediate peers, a factor that often leads to several drop-outs from the clerkship programme. An orientation session at the beginning of the service-period will ensure that there is healthy collegiality and interaction amongst the entire pool of law clerks.
Unlike their contemporaries who begin as apprentices under established lawyers, law clerks usually do not have to face the unpredictable behaviour of clients and fellow lawyers involved in a case. While handling such uncertainties can be glorified as a rite of passage for a budding litigator, law clerks have to negotiate their way through the labyrinthine bureaucracy of the Court as they interact more closely with the personal staff at the residential offices of the Justices. Once in Court, law clerks often find themselves interacting with the security personnel and the staff at the judges’ library, often with comical consequences. Irrespective of these differences, clerkships offer the opportunity for deep and sustained engagement with cases that are heard on merits. Unlike a legal scholar who usually has to confine his/her analysis to the reading of the eventual judgment, a law clerk gets to see the records from the lower courts, the inputs made by the counsels for the interested parties, the courtroom dynamics and often gets to contribute to the decision-making process. All in all it is an experience that I would highly recommend for those interested in studying our judicial system in the long-run.