Drafting judgments, screening calls and being part of the family: Inside the world of Judicial Clerks

Probably one of the least documented and understood career options for an Indian law graduate is a clerkship at the Supreme Court of India. While there have been sporadic bursts of media attention to the judicial clerks (the sexual harassment allegations, writ petitions challenging the selection), any analysis of the clerkship programme itself is hard to find. Till now..In a paper titled, “From Hyderabad to Harvard: How U.S. Law Schools Make Clerking on India’s Supreme Court Worthwhile”, Abhinav Chandrachud takes a deeper look at what it means to clerk in the Apex court..Through interviews with either past or serving clerks, as well as comparisons with the American model, the paper throws up a number of interesting findings. These findings range from the personal (the relationship formed between a judge and a clerk), to the professional (the kind of work a clerk does) and even the procedural (the selection process for clerks)..One of the potentially controversial findings of the paper relates to judicial clerks drafting judgments, a topic that has generated debate in America as well. There are a number of instances where clerks admit to writing judgments. Chandrachud says that he wasn’t too surprised when the former clerks he interviewed admitted that they wrote judgments. In fact, over reliance on law clerks for writing judgments leads to a completely different concern..“Given the backbreaking caseload in the Supreme Court of India, it’s unfair to expect a judge in his late 50s or early 60s to draft every judgment from scratch. However, I worry that the increasing use of law clerks to write judgments on the Supreme Court might make the court’s judgments more formalistic, and lacking in the personal touch of a Bhagwati or Krishna Iyer.”.Equally significant are the loosely defined, and at times not even that, role of a judicial clerk. Right from the start of the recruitment process, there is a lack of institutional support available to law clerks. Part of this reason may be the relative newness of the institution of clerkship; very often judges themselves are not very sure about what a law clerk is expected to do..And because the kind of work a clerk does largely depends on the judge she has been assigned to, there is a disconcerting lack of consistency when it comes to the clerkship experience. For instance, some judges would rarely receive any work at all and rarely meet the clerks while some judges were known to delegate a substantial amount of work to their clerks..Another inconsistency is found in the kind of relationship that were built between a judge and the law clerk; some clerks continue to be in touch with their judges, with a relationship akin to a student and a teacher..Says Chandrachud,.“I found it surprising and interesting that many clerks developed very close bonds with their judges – they played cricket with their judges, taught them how to download songs off the internet, and one judge even went for his law clerk’s graduation ceremony at Harvard Law School.”.What is interesting to note here is that the paper reveals a very human side of the Indian judiciary. Given the scarcity of publicly available information on the lives of Supreme Court judges, the paper is peppered with interesting anecdotes. For instance, one clerk recounts how a party held at a judge’s residence was “gender stratified” with men and women sitting separately. Another clerk spoke of how judges of the High Court would often visit her judge, presumably seeking an elevation to the Supreme Court. Yet another clerk revealed the practice of judges meeting every Wednesday for lunch, where the “the responsibility to the cater the event alternated between each judge of the court.”.A considerable part of the paper is devoted to such descriptions while it is towards the latter half of the paper, that Chandrachud delves into why law graduates choose to clerk in the first place. And this is where the title of the paper starts becoming relevant..Observing the gradual “Americanisation” of Indian law graduates, the paper notes the increasing tendency of Indian students to tailor their CV’s with the sole objective of gaining admission into one of the “elite east coast” law schools. A judicial clerkship, traditionally undertaken by the highest ranked students in an American law school, are usually not that sought after by Indian law students..“I had expected that law students who were interested in careers in litigation would take up clerkships on the Supreme Court. I learned that this was not true. Even those without an interest in litigation were taking it up, because they thought it enhanced their chances for the LL.M.”.When asked why American law schools continue to attract Indian law students, Chandrachud says that,.It could be that Indian law students want to get a good, quality education, which for whatever reason they think their own law schools in India were not able to give them. It could be the desire to gain access to networks. There are quantifiable benefits too – I know law clerks who did LL.M.s and then got high-paying jobs at U.S. law firms, so doing an LL.M. and writing the New York/California Bar does have tangible benefits for some..But he is also quick to admit that he does not have all the answers and that there could be a multitude of reasons behind why an American LL.M. continues to be so popular with Indian law students. And this allure for an LL.M. is all the more puzzling given the fact that the degree rarely translates into a better pay or position within an Indian law firm. Of course, a better pay may not be the sole motivating factor. In this 2012 paper, Swethaa Ballakrishnen writes, .Students are aware that an American graduate degree holds limited substantive relevance for practice in their home jurisdiction, but find that the overall experience is worthwhile to them because of personal value. For some, this value is the access to international resources and contacts, even if they have not yet begun to use these networks……two functional, individual rewards were more common across the interviews: (1) the access to an intellectual environment that offered educational rewards beyond substantive technical knowledge; and (2) the ability to (or the possibility of) personalizing career trajectories..In fact, this 2012 paper is used by Chandrachud to build his own set of arguments. But setting side the reasons behind Indian law graduates making the decisions they do, Chandrachud’s paper should also be of interest for those looking to learn more about the Supreme Court itself.