The perils of post-facto policy shifts: A case study of the Supreme Court Law Clerk exam

In recent years, the role of law clerks has become pivotal in assisting judges dispense justice in constitutional courts.

A judicial clerkship gives an opportunity to law graduates to embark on their legal journey ahead with a broader and wiser vision. It also gives them an early career boost in an otherwise challenging profession, especially for those from far-flung areas without any legal background.

It is a huge stepping stone for those from humble backgrounds aspiring to pursue further legal studies in the best universities abroad, considering the varied scholarship avenues offered by prestigious institutes.

The opportunity to be a law clerk arms aspiring first generation lawyers with not only legal experience, but also helps them financially.

All of these factors makes the recruitment process/examination for Supreme Court law clerks sacrosanct. The declared norms gain immense significance, while any deviation therefrom undermines the trust of deserving candidates.

In 2024, the scheme for engagement of Supreme Court law clerks came to be notified titled as the Scheme of Engaging Law Clerk-cum-Research Associates on Short-Term Contractual Assignments in the Supreme Court of India-January 2024. As per Clause G of the 2024-Scheme, minimum qualifying marks in Part-I of the exam (MCQs consisting of 100 marks) was notified to be 40%, for eligibility to be evaluated under Part-II examination. Part-II (descriptive paper for 300 marks) holds a separate 50% qualifying threshold under the said Scheme.

To reach the interview stage, a candidate is required to score a minimum of combined 50% in both Part I & Part II. From these engagements under the Scheme, each judge is assigned two law clerks. The examination under this Scheme-2024 was held in the month of March 2024.

This article focuses on the recently conducted Law Clerk-cum-Research Associate Examination, 2025. The advertisement for the same was published on January 10, 2025. It significantly and unequivocally adopted the ‘Scheme-2024’ as the foundational framework for the 2025 recruitment examinations.

Clause 12 of the General Instructions of ‘Advertisement-2025’ reserved the right to cancel/restrict/enlarge/modify/alter the selection process with the Registry of the Court.

Both Part I and Part II were to be held on the same day in two shifts, as in the past year. The ‘Advertisement-2025' notified the same cut off - 40% for Part-I and once again negative marking of 0.25 marks for each wrong answer in the Part-I paper was continued. The need to achieve the required cut-off is thus intrinsically connected with the negative marking in Part I. Accordingly, the candidate dilutes her/his time and preferential choices to score the minimum qualifying marks in both the papers.

However, when the results were declared, to the shock and dismay of many candidates, the 40% cut-off for the Part-I examination was increased to 60%. This un-notified increase by 20% left the candidates wondering how the 40% cut-off notified prior to the Part-I and Part-II examinations could be enhanced by 20% to disqualify them.

More so, when they were made to attempt the Part-I examination with a clear provision of negative marking scheme of 0.25 marks for every wrong answer. Candidates took a conscious decision while attempting the examination to secure the minimum threshold marks by avoiding calculative risks.

Would this be in consonance with fair play and settled principles of law that the rules of the game cannot be changed midway through the selection process?

Would it be fair to aspirants who take both Part-I and Part-II examinations in the same day in two shifts?

Would it not be against the principles of legitimate expectation and natural justice?

Has it not denied the evaluation of Part-II examination to deserving candidates, adversely affecting their intellectual diligence?

The examination strategy adopted by many candidates to skip questions becomes counterproductive if the scoring standard is raised after the exams without any notice prior to the Part-I examination.

If the qualifying cut-off is pre-notified and number of applicants are more than expected, then the same is within the knowledge of the authority conducting the examinations and a higher cut-off can be easily notified prior to the Part-I examination.

But to raise it by 20% at the time of declaring the results is extremely harsh, unfair and arbitrary to the candidates who take the exam keeping in mind the negative marking scheme.

Any change in the notified cut-off after both exams are concluded, is a change of ‘solemn selection criteria and essential conditions’ pre-notified for conducting the examinations.

An un-notified, last-minute change in the minimum qualifying marks for Part-I would adversely affect aspirants who otherwise performed commendably. Thus, despite scoring well above the notified 40% threshold (51-60%), the Part-II papers of such candidates were not even evaluated, effectively disqualifying them from further consideration.

A retrospective enhancement of qualifying criteria in a competitive exam without prior notice, especially when candidates attempted the paper under a notified scheme, cannot be upheld jurisprudentially. The authoritative pronouncement in the Tej Prakash Pathak v. High Court of Rajasthan, (2025) on the change in criteria after the recruitment process was commenced inherently bars such a change at this stage.

There is an urgent need to have a sensitive grievance authority in the Recruitment Cell itself, which can delve upon such core issues legally and duly forward such grievances to the Committee of Judges formed on the administrative side for appropriate action.

There is absolutely no light on what action is taken on any such representations by the Recruitment Cells, leaving the candidates extremely disappointed. It is the need of the hour in the constitutional courts to further streamline engagements touching the lives and futures of law graduates applying for clerkships.

Kaveeta Wadia is Senior Advocate of the Supreme Court.