Saturday, April 21, 2012

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 merits.       

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.
  

1 comment:

Tarunabh Khaitan said...

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?