Law Clerks Are Not Supposed To Practice Law During Their Tenure: Supreme Court
The Supreme Court, on Friday, refused to entertain a Writ Petition filed under Article 32 of the Constitution challenging the guidelines issued by Madras High Court on the administrative side, which mandated the suspension of practice as an Advocate for individuals seeking appointment as Law Clerks with High Court Judges. Additionally, the petitioner had sought a direction from the State Government to consider their experience as a Law Clerk as qualifying practice experience, thus making the Petitioner eligible for applying to the post of civil judge.
The Bench of Chief Justice D.Y. Chandrachud, Justice J.B. Pardiwala, and Justice Manoj Misra was dealing with a Petition filed by one R. Harishni who worked as Law Clerk-Cum- Research Assistant with a Madras High Court Judge for a period of 2 years and had to suspend her practice as per the guidelines. However, after the completion of her tenure as a Law Clerk, Harshini resumed her practice in the year 2021.
Later, in the year 2023, Harishni sought to apply for the post of Civil Judge in the Tamil Nadu State Judicial Service but was ineligible to apply as the qualifications to apply as a Civil Judge required a minimum 3 years of practice, which did not include the time period spent as Law Clerk to a High Court Judge. Due to the temporary suspension of practice, Harishni was short of seven months of practice and hence challenged the guidelines before the Apex Court.
In her Petition, along with her challenge to the said guidelines, she also sought directions to count her experience as a Law Clerk as a "practising experience", for becoming a qualified and eligible candidate for the post of Civil Judge. It was submitted in the Petition that "Unlike High Court of Judicature at Madras, High Courts like Allahabad High Court, Calcutta High Court, Chhattisgarh High Court and Tirupura High Court, where only undertaking is prescribed rather than suspension of practice."
It was highlighted in the Petition that while Allahabad High Court only seeks an undertaking stating that the Law Clerk (Trainee) shall not appear in any case handled by the Judge(s) with whom he/she had been attached; Tripura High Court seeks an undertaking that Law Clerk will not accept any other assignments during the term of assignment as Law Clerk and will not practice for a period of one year in the High Court of Tripura; Calcutta High Court seeks execution of undertaking in the appended form as acceptance of the assignment; Chhattisgarh High Court seeks an undertaking that Law Clerks shall not appear in any case handled by the Judge(s) with whom he/she had been attached, it is the Madras High Court which seeks the suspension of practice.
Further, the Petition stated, "Thus, in these 4 High Courts instead of suspension of practice, Law Clerks are only given undertaking that they will not assignment accept any other during the tenure. Further in case of Law Clerks in the Supreme Court, there is a restriction that Law Clerk should not practise in any High Court and undertaking should also be given to that effect".
The petitioner contended that Articles 14 and 16 of the Constitution ensure that there should not be any discrimination in the matter of appointment in service, or arbitrariness or unreasonableness in the rule of recruitment providing for the appointment. "The mandate of Suspension of practice has the nature of invidious discrimination violative of Art. 14 of the Constitution of India, without any rational nexus sought to be achieved by such unreasonable provision of suspension", the plea said.
The CJI at the outset of the hearing remarked "The Law Clerks will be sitting here and appearing in other Courts? Do you want Law Clerks to practice now? if they don't give that undertaking, they will be appearing before some Court when they are Law Clerks before us, what is this challenge?".
CJI Chandrachud further stated, "You are not supposed to appear in a Court. Else don't be a Law Clerk. Who compels you? But if you are a Law Clerk, you can't appear in that duration." Appearing for the Petitioner, Advocate R.Hemalatha along with Advocate-on-Record Geetha Kovilan clarified, "The undertaking is not in dispute, Bar Council suspending the practice is."
To which, the CJI further commented, "Obviously you have to, because you are the Law Clerk with a Judge. Nobody compels you to become a Law Clerk, people do that because of the fact that you have invaluable experience...my Law Clerks are all over the world, and they are a great source of pride to me, that is how we mentor them".
Accordingly, the Court in its order noted "We are not inclined to entertain the Writ Petition instituted under Article 32 of the Constitution of India. The Writ Petition is accordingly dismissed."
Cause Title: R Harishni v. the Registrar General & Anr. [Writ Petition(s)(Civil) No(s). 755/2023]
