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Breaking: SC's NLU-pref in judicial clerkships unconstitutional: Delhi HC

SC clerkships: Egalitarian?
SC clerkships: Egalitarian?

Supreme Court judicial clerkships may no longer remain the preserve of national law schools and select universities after the Delhi high court today ruled as unconstitutional the Supreme Court’s current procedure of inviting applications for the clerkships.

In a 56 page judgment justice Rajiv Shakdher said that the Supreme Court must change its policy of allowing only national law university graduates and graduates from universities “approved” by the Supreme Court to apply for the annual law-clerk openings in the court.

Shakdher also directed the Supreme Court’s registrar to consider afresh AIL Mohali graduate Phalguni Nilesh Lal’s application for the clerkship and let her clerk at the Supreme Court for the remaining term of clerkships this year – until May 2014, in case she meets the criteria for selection.

Lal had petitioned the Delhi HC in January challenging the validity of the selection procedure under which she was ineligible to apply because the Supreme Court had not invited her law school to submit applications for the post.

In December 2012, the Supreme Court’s registrar had written to select law schools stating:

“You are aware that Final year/semester/trimester LLB/LLM students from National Law Schools/Universities on the approved panel and in the stand-by category in the country are considered for short-term assignment as Law-Clerk-cum-Research-Assistant in the registry of the Supreme Court of India.”

Lal, through advocates Rajeev Sharma, Uddyam Mukherjee and Sahil Bhalaik, challenged the procedure as violating her constitutional right to equality under Article 14.

The Delhi high court today said that its decision would not affect the candidates who have already been recruited for the 2013-14 term of clerkships, but the selection procedure must be changed from next term.

Last month additional solicitor general (ASG) Indira Jaising had condemned former ASG Altaf Ahmed’s suggestion of doing away with internships under judges, as “worse than the disease”. The Times had reported Ahmed’s reaction to the controversy that had arisen in the Supreme Court due to a former intern’s sexual harassment allegations against the then unnamed retired C judge AK Ganguly.

Download judgment here [PDF 600KB]

The petitioner, in effect, is asking for a look-in or consideration of her ability to fulfill the role of a LCRA. Denial of such an opportunity by respondent no.1, by taking recourse to the present dispensation, is in my view, manifestly unjust. The scheme/ policy/ eligibility criteria is both discriminatory and arbitrary, and thus, violative of the equality clause engrafted in Article 14 of the Constitution…

Though, engagement as a LCRA is not an employment to a civil post, nevertheless, the right to be considered will, in my view, be an enforceable right qua an organ of the state such as the Supreme Court.

Therefore, I have no hesitation in declaring that the scheme/ policy, as formulated, is unconstitutional. This is not to say, that respondent no.1 cannot devise a scheme/policy. It is undoubtedly empowered to design a policy which is fair and equitable, and that, which enables every aspirant to be  considered  for  engagement as a LCRA.

Necessarily, the mode and manner of sifting the source would have to be devised by respondent no.1. Therefore, to the extent the present scheme/policy confines the source of candidates, for engagement as LCRAs, to the empanelled Law Colleges and Universities; it is illegal.

That said the concerned Judge with whom a LCRA is to be attached will ultimately have a say in the matter. The concerned Judge would necessarily have a pool of eligible LCRAs available with him / her from which he / she could choose a particular LCRA for attachment.

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