Jahanvi Agarwal
On Friday, i.e., August 4, 2023, the Supreme Court refused to hear a Writ Petition brought under Article 32 of the Constitution that challenged the administrative guidelines established by the Madras High Court, which required that anyone applying to be a law clerk for a judge in the High Court suspend their advocacy practice. Further, the petitioner has requested the State government issue a direction allowing them to include their work as a law clerk as a qualifying practice, making them qualified to apply for the position of civil judge.
A petition filed by R. Harishni, who served as a law clerk and research assistant for a Madras High Court judge for two years before being required to suspend her practice in accordance with the guidelines, was being heard by the bench of Chief Justice D.Y. Chandrachud, Justice J.B. Pardiwala, and Justice Manoj Misra. However, Harshini resumed her practice in 2021 once her term as a law clerk had come to an end.
Harishni later tried to apply for the position of Civil Judge in the Tamil Nadu State Judicial Service in the year 2023, but she was not qualified to do so because the requirements for applying as a Civil Judge required a minimum of 3 years of practice, which did not include the time spent as a Law Clerk to a High Court Judge.
Due to the temporary suspension of practice, Harishni was short of seven months and contested the guidelines before the Supreme Court. She requested directions in her petition to consider her time working as a law clerk as “practicing experience” in order to qualify and be eligible for the position of Civil Judge in addition to challenging the aforementioned rules.
It was noted in the petition that the Allahabad High Court only requests an undertaking stating that the Law Clerk (Trainee) shall not participate in any case handled by the Judge with whom he or she had been attached.
The Tripura High Court requests an undertaking that the Law Clerk will not accept any other assignments during the term of assignment as a Law Clerk and will not practice for a period of one year in the High Court of Tripura.
The Madras High Court is requesting the suspension of practice, while the Chhattisgarh High Court is asking for an assurance that Law Clerks will not appear in any cases handled by the Judge with whom they had been associated.
The Petitioner claimed that Articles 14 and 16 of the Indian Constitution require that there shall be no discrimination in the subject of appointment in service, as well as arbitrariness or unreasonableness in the rule of recruitment providing for the appointment.
The Chief Justice of India made a comment at the beginning of the hearing that:
“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? 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.”
Advocate R.Hemalatha and Advocate-on-Record Geetha Kovilan spoke in support of the Petitioner and clarified that:
“The undertaking is not in dispute, Bar Council suspending the practice is.”
The CJI went on to add the following:
“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”.
In light of this, the Court stated in its order that:
“We are not inclined to entertain the Writ Petition instituted under Article 32 of the Constitution of India. The Writ Petition is accordingly dismissed.”
Case Name: R Harishni v. the Registrar General & Anr.
Diary Number: 755/2023
Bench: Chief Justice D.Y. Chandrachud, Justice J.B. Pardiwala, and Justice Manoj Misra
Click here to Access the Order.