If Elena Kagan’s nomination to the US Supreme Court is confirmed by the Senate, the Court will comprise Justices who are all either from Harvard or Yale. Naturally, there has been intense debate on whether the Supreme Court is being fortified in an exclusionary philosophy that favours products of elite, expensive Ivy League education – at the cost of diversity and experience elsewhere in the country.
The [US] Court has become a bastion of the elite – it’s sophisticated, north-eastern, highly cultured.
- Prof. Peter Hoffer, co-author of The Supreme Court: An Essential History.
Indeed, it is a cause of concern that the establishment looks favourably upon a miniscule pool of legal talent to decide matters that will influence the lives of citizens across the board. The demographic dynamism of the US Supreme Court is a debate for another day, but by any yardstick, it is dangerous to ignore the heterogeneity of legal education in the United States, of all countries. For an informative piece on the issue, please read BBC’s Harvard v. Yale.
The system merits a comparison with the Indian Supreme Court, not with the appointment of judges, but interestingly, of law clerks. Judicial clerkships in India are a relatively new phenomenon, started in the 90s, and borrowed from the US where it commenced a century earlier. The hiring process was initiated to attract the finest legal minds in India – but now, it runs the risk of being confined to a narrow segment selected primarily on the basis of their National Law University lineage.
Thanks to an appointment process that is vulnerable to partisan confrontation, the qualifications of a Supreme Court Justice have long been the subject of mainstream discussion in the United States. At the graduate level, clerking with a judge of a Federal or Supreme Court is recommended, and it is no surprise that five of nine Supreme Court Justices (both outgoing John Paul Stevens and incoming Kagan included, so the ratio is unchanged) have previously been law clerks.
In India, the year long stint provides first-hand insight into judicial process and undeniable fillip to qualitative legal research skills. Moreover, rapid advancements in legal education over the past decade have ensured that future appointments to India’s courts will be rigorous and competitive. With the probable advent of an All India Judicial Service, the profile of entrants is expected to be stellar, and it is likely that former law clerks will stand a strong chance of rising to higher echelons within the judiciary. The influence of law clerks in formulating judicial decisions is also the subject of much scrutiny in the United States. As the hiring of law clerks becomes systematized at the appellate level of the Indian judiciary, this issue is likely to galvanize public opinion in India as well.
Consequently, the current trends in selecting law clerks to the Supreme Court of India (lower courts do not have an institutionalized process yet) leave much cause for concern. The recruitment is primarily based on Universities forwarding a list of eligible candidates to the Registrar of the Court, and a Judges Committee makes the final selections. Last year, the invitation to apply for clerkships was sent only to five National Law Universities (NLSIU Bangalore, NALSAR Hyderabad, WB NUJS Kolkata, NLU-Jodhpur and NLIU-Bhopal). Subsequently, a total of 31 students were selected from these institutions. While it may be possible for students from other Universities to work with a Judge of the Supreme Court informally, it is unclear whether the terms of recognition and remuneration are the same.
Without doubt, the National Law Universities harbour some of the best and brightest students in the country. However, several factors may deter a student from such privileged education, including prohibitive costs of exam coaching and University tuition. In addition, the lion’s share of students at the NLUs come from an urban background, with very little diversity to account from rural areas and underprivileged groups.
These are factors that the Indian Supreme Court needs to consider in the process of hiring law clerks. It is imperative that this valuable opportunity is provided to graduates from recognized law Universities/Colleges across India. The Apex Court cannot afford to be an ivory tower, and restrictions based on elite backgrounds will prove detrimental in the long-run.
(For the record, the author is an applicant to the process himself!)
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The project to make students aware across diverse sections of the society started by Prof. Shamnad will help in long run.
Hah. Interesting observations. I dont even know if people from other law colleges are aware of this. There is bound to be an uproar then.