Tuesday, December 17, 2013

Delhi High Court Finds Indian Supreme Court's Clerkship Policy Unconsitutional

Today, Justice Rajiv Shakdher found the Indian Supreme Court's policy for appointing law clerks was unconstitutional. The petitioner in the case was the top of her class at the Army Institute of Law in Mohali and wished to clerk at the Supreme Court. However, the Supreme Court's Registrar's policy was to only accept applications for clerking at the Supreme Court from an approved panel of schools (a total of 18 schools). Since her school was not amongst these approved schools the petitioner could not apply. Although the Registrar of the Supreme Court defended this policy upon "administrative" grounds, the judgment found that this classification of graduates who could apply for a clerkship and those that could not did "not disclose any valid, relevant or discernible principle." The Court, therefore, found that the registrar's policy violated Article 14 of the Indian Constitution.

This judgment will be welcome by the many students and commentators who have complained over the years that the Supreme Court's clerkship policy has discriminated against very able students who did not attend one of the approved schools (which are dominated by the national law schools). Hopefully, this will help democratize the application process and undercut some of the nefarious hierarchy that lawyers are famous for perpetuating within the profession. Ironically, most of the Indian Supreme Court's judges did not graduate from approved schools and so their younger selves would have been ineligible to clerk for the Court.

This decision reminded me of a much publicized and controversial decisions three years ago, where the Delhi High Court found that the Chief Justice of the Indian Supreme Court fell under the Right to Information Act (a decision later appealed and stayed by the Supreme Court itself). Although the situations in these two cases are quite different, it will be interesting to see how the Supreme Court reacts in this instance of another challenge by the Delhi High Court to the Supreme Court's administrative operations. Another reminder of the potential questionable legality of the administration of the Supreme Court came recently when pressure was put on the Court to finally adhere to its own judgment in Vishaka to set up a panel that could hear allegations of sexual harassment in the workplace of the Supreme Court.

In the U.S. many commentators have made the observation that at different points in American history the caliber of judges have been higher on the second circuit or the D.C. circuit than the U.S. Supreme Court. Amongst the Delhi bar it was already a common refrain that in recent years the Delhi High Court (whose judges are mostly drawn from the Delhi bar) might be a stronger group of judges than those on the Indian Supreme Court (whose judges are drawn from across India). Those holding this opinion will likely find further ammunition in last week's Supreme Court judgment in Koushal, which overturned the Delhi High Court's much celebrated judgment that had struck down section 377 of the Indian Penal Code. Certainly the Indian Supreme Court remains paramount in law, but if it is not careful about how it attends to its own institutional weaknesses both small and large, including how the Court goes about hearing cases of historical importance, it might find itself quickly losing the confidence of the bar and the public more generally. There is more scrutiny than ever on the Court's operations and this, overall, should be seen as a welcome development.   
Post a Comment