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Law Clerks Prohibited from Practicing Law During Tenure

Law Clerks

On Friday, the Supreme Court declined to entertain a Writ Petition filed under Article 32 of the Constitution. The petition challenged the guidelines issued by the Madras High Court on the administrative side, which made it mandatory for individuals seeking appointment as Law Clerks with High Court Judges to suspend their practice as an Advocate. Furthermore, the petitioner requested a direction from the State Government to recognize their experience as a Law Clerk as qualifying practice, allowing them to apply for the position of civil judge.

The Bench comprising Chief Justice D.Y. Chandrachud, Justice J.B. Pardiwala, and Justice Manoj Misra addressed a Petition filed by R. Harishni, who served as a Law Clerk-Cum-Research Assistant for a Madras High Court Judge for 2 years. As per the guidelines, she had to suspend her practice during her tenure. Subsequently, in 2021, after completing her tenure as a Law Clerk, Harishni resumed her legal practice.

In 2023, Harishni attempted to apply for the position of Civil Judge in the Tamil Nadu State Judicial Service. However, she faced ineligibility as the qualifications required a minimum of 3 years of practice, excluding the period spent as a Law Clerk to a High Court Judge. Due to the temporary suspension of her practice, Harishni fell short of seven months of practice. Consequently, she challenged the guidelines before the Apex Court. Her Petition not only contested the guidelines but also sought directions to consider her Law Clerk experience as “practising experience” to qualify as an eligible candidate for the Civil Judge post. The Petition highlighted that certain High Courts like Allahabad High Court, Calcutta High Court, Chhattisgarh High Court, and Tirupura High Court only require an undertaking rather than suspension of practice.

The Petition emphasized that various High Courts have different requirements for Law Clerks. While Allahabad High Court only asks for an undertaking that the Law Clerk (Trainee) will not appear in cases handled by the attached Judge(s), Tripura High Court seeks an undertaking that Law Clerks will not accept any other assignments during their tenure and will refrain from practicing in the High Court of Tripura for one year. On the other hand, Calcutta High Court requires an undertaking as acceptance of the assignment, and Chhattisgarh High Court seeks an undertaking that Law Clerks will not appear in cases handled by the attached Judge(s). In contrast, it is the Madras High Court that demands the suspension of practice during the Law Clerk’s tenure.

The Petition further highlighted that in these four High Courts, Law clerks are only required to give an undertaking not to accept any other assignment during their tenure, instead of suspending their practice. Additionally, Law Clerks in the Supreme Court face a restriction that they should not practice in any High Court, and they must provide an undertaking to that effect. The petitioner argued that Articles 14 and 16 of the Constitution prohibit any discrimination in matters of appointment and emphasize the need for rational and reasonable recruitment rules. The mandatory suspension of practice was deemed invidious and violative of Article 14 of the Constitution, lacking any rational connection to its purported objectives, as per the plea.

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.”

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