Delhi HC declares Supreme Court’s Judicial Clerkship appointment process unconstitutional

Justice Rajiv Shakdher of the Delhi High Court has struck down as unconstitutional, the manner in which the Supreme Court selects Law Clerks and Research Assistants (LCRA). The High Court was hearing a petition filed by a graduate of the Army Institute of Law Mohali (AIL), Phaguni Nilesh Lal..The judgment has deemed illegal and unconstitutional the LCRA appointment scheme insofar as the scheme is limited to selecting students from a list of empanelled law schools..The scheme, as it currently stands, prevents students who do not belong to these institutes from even applying for the post. In fairly unambiguous words, the High Court has set aside the empanelment process stating that,.“What is found fault with is that there is no discernible principle or guidelines based on which respondent no.1 has proceeded to select candidates from only empanelled Law Colleges and Universities. If the argument of respondent no.1 is that sourcing of prospective candidates from the empanelled Colleges is itself a qualification criteria; it is a submission, which would have to be rejected. There can be no difficulty in respondent no.1 providing minimum qualification for recruitment of prospective applicants; as long as empanelment is not confined to few selected Law Colleges and Universities, without disclosing the relevant parameter or benchmark necessary, for achieving empanelment.”.The then-law student behind the petition, Phaguni says that the judgment came as an extremely pleasant surprise. Of course, this victory was not easily achieved. After being informed in January 2013 by the Supreme Court Registry that she was ineligible to apply for an LCRA post, Phaguni decided to use the RTI Act to understand just why this was so. The evasiveness however continued; for example one of the justifications provided for not supplying the answers was that the same may, “prejudicially affect the functioning of the Registry”..Discouraged by the response, Phaguni sought the advice of Advocate Rajeev Sharma, under whom she was interning at that time. Sharma advised her to be patient but also examine the possibility of filing a writ petition in this regard. In February this year, she filed the writ and it was Sharma who argued the matter..One of the primary arguments raised by the Respondent Registrar General was that of maintainability. Since AIL was not in the “empanelled list”, argued ASG Chandhiok, Phaguni lacked the locus to challenge the scheme in the first place. He also argued, inter alia that the engagement of an LCRA was a “personal engagement” and could not be equated to civil posts..Dismissing this contention, J. Shakdher held that,.“The terms of engagement of LCRAs require admittedly payment of a stipend/ honorarium, which is paid out of public money, in the form of funds provided by the Government of India through the consolidated fund of India. The right to be considered for engagement as a LCRA by a State authority has thus a public law character.”.The High Court goes on to hold the existing LCRA policy scheme is illegal insofar as it,.“..confines the source of candidates, for engagement as LCRAs, to the empanelled Law Colleges and Universities..”.This judgment will undoubtedly be a boost for students interested in pursuing a clerkship in the Supreme Court and who do not happen to study in the list of empanelled institutes..The number of such institutes, that is BCI recognized law colleges, is close to 900. Phaguni is also careful to stress on the fact that this verdict should not be reduced to some sort of “victory” of non-National Law Universities (NLUs) over NLU’s. “One of the biggest problems I faced,” says Phaguni, “was the complete lack of information on how the Registry functions.” To that extent, this judgment will certainly go a long way in shedding light on at least one aspect of functions of the Supreme Court.