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Judicial clerkships
JUDICIAL CLERKSHIPS are salient features of the U.S. and Canadian legal and education systems and they need to be introduced in the Indian legal system as well. In the United States and Canada, judges at the federal, State Supreme Court and several at the trial court levels use clerks. Clerkships in general and especially those at the federal level (in both countries) are extremely competitive and prestigious. They are frequently offered to graduates from top law schools who have excellent grades, served as editors of their law schools' journals and have demonstrated top analytical, research, and writing skills. While clerkships vary according to the type of court and the needs and preferences of individual judges, they are normally for not more than two years and the slant on research and writing is a common thread that runs through this unique post-law school experience.
What is a judicial clerkship and why is it considered an invaluable experience in the career of a law student? Judges at all levels require assistance in deciding cases and they take the assistance of judicial clerks who are essentially their attorney-assistants. A judicial clerk's duties and responsibilities generally include conducting library research, writing bench memoranda, drafting other materials helpful at oral argument and assisting judges in the writing of opinions. Clearly the opinion drafting function is the most rewarding aspect of the clerkship because it not only exposes the clerk to the actual process of thinking from both sides of a problem and writing on it but also the opportunity to discuss substantive legal issues with a judge.
There is great scope for the development of the judicial clerkship programme in India. Not unlike their foreign counterparts, judges in India — at all levels — are in need of quality assistance in performing their duties. And nothing can be more mutually beneficial (to the judiciary and the student fraternity) than the introduction of judicial clerkships.
It would be erroneous to introduce judicial clerkship programmes only at the Supreme or High Court level. While it may be initiated at these levels first, it must eventually be extended to the levels of the district courts, magistrates, Income-tax Appellate Tribunals (ITATs) and even debt recovery tribunals. Many students aspire to enter the world of litigation and become ace lawyers. An excellent chance of gaining first hand exposure to trial procedure and evidence is possible for them through a clerkship at the trial courts. On the other hand at the High Court level, students can gain in-depth exposure to and experience in a few select complex areas such as constitutional law, writs including habeas corpus and certiorari, administrative law and service matters. Those who have obtained excellent grades in tax law courses and aspire to practise in this specialised field can be assigned clerkships at the ITATs. Here they can assist the tribunal members by researching points of law, digesting, drafting and assisting in other related assignments on tax cases coming to the tribunal. At the Supreme Court level, students can be of tremendous assistance to judges in a wide array of matters including preparing a summary of facts, conducting general research, looking up and updating relevant authorities, reading briefs and making a record of facts and arguments. They can also gain exposure to arbitration matters including enforceability of foreign awards and international trade. True, exposure to trial practice experience is limited at the appellate courts but clerks still stand to gain since they can study records included in an appeal.
Interactive session
It is desirable that judges (and where applicable, tribunal members) have an interactive session with the candidates before taking them as their clerks. This would not only hone the students' interview-taking skills but also give the judges an opportunity to get to know the clerks who are going to work for them. The student must also be permitted to pose questions to the judge about working conditions, about his duties and what the judge expects from him. An interactive session like this will go a long way in fostering a relationship based on respect and dignity rather than one of a superior and an acolyte. Since teaching styles and grading vary from law school to law school it is desirable that appointments for judicial clerkships be based not on grades alone. Emphasis must be placed on selecting those who have demonstrated strong writing, analytical and research skills not only in academic projects but also extracurricular activities. Also giving law school administrators the power and responsibility of nominating candidates for judicial clerkships is inadvisable. While this could be the set-up initially, eventually judicial clerkships should be based on an open competition with merit being the sole criterion.
Mr. Justice Kirpal, Chief Justice of the Supreme Court, recently announced the introduction of a sort of judicial clerkship at the Supreme Court level. While this decision is certainly welcome, this author advocates that this clerkship programme be eventually extended to all courts and be administered fairly with merit being the sole selection criterion. A judicial clerkship is a capstone to a student's law school education. It also provides a unique opportunity for judges to make a meaningful contribution to legal education and thereby elevate the standards of the Bar. Let us hope that our judges will rise to the occasion by making innovative contributions, serving as mentors to the young law graduates and bringing out the best in them and in ensuring that judicial clerkships become an integral feature of our legal landscape.
VIJAYASHRI SRIPATI
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