Some Reflections on Clerkships in the Indian Supreme Court

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.
From the perspective of law
students, one of the tangible 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.
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
Apart from freshly instituted matters, there is also scope for reliance
on law clerks 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.
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.   
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.
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.
Guest Post by Sidharth Chauhan, who is currently a lecturer at the National Law School of
India University in Bangalore. A longer version of the piece appeared on the blog, Bar and Bench.
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Tarunabh Khaitan
Tarunabh Khaitan
9 years ago

Very interesting Sidharth. Do you think that with a stable clerkship system in place, admission decisions can now be made on paper alone, and court time freed up for substantive arguments? or would this be a bad idea?