Courting Supremacy: Megha Mehta on Judicial Clerkships as an #AltCareer
This article has been written by Megha Mehta (Batch of 2019).
For those who don’t know me, I shall give a brief introduction. My name is Megha Mehta. I had gained a considerable amount of fame at NLS for my summaries (which I think are still in circulation) and in later stages of law school life, for my movie reviews. I may also have acquired infamy for other reasons, but for that, you’ll have to wait for my full-fledged autobiography to be released 30 years later.
Without further ado or clichéd platitudes on Corona Pyaar Hai, I will jump to the aim and objective of my article, laa-school project style. I am currently clerking with Hon’ble Justice M.M. Shantanagoudar at the Supreme Court. I have written this piece to illuminate my fellow law school brethren about the potentialities of working as a law clerk for a Supreme Court judge post-graduation. Through this article, I wish to answer certain FAQs such as what is a clerkship, what are the responsibilities of a clerk, what is the learning experience like, how do you get a clerkship, is it true that the Supreme Court is run by the Illuminati, etc.
With regard to scope and limitations, I have deliberately refrained from commenting about my personal clerkship experience because I wanted this to be a general primer on clerkships and not a recruitment ad for my office specifically, though I have mentioned it briefly at the end of this piece. Also, I am continuing for a second year so that’s a separate piece which I will presumably write once my clerkship officially ends. Instead, this article is mostly based on an amalgamation of what I’ve seen and heard across various Chambers. It may not be possible for this piece to answer all queries, and some information has been kept vague on account of confidentiality requirements (particularly the Illuminati question). However, I hope this can give you a fair idea of what a clerkship truly entails.
What is a clerkship? What kind of work do you do?
A law clerk is basically a research assistant to a judge. The bulk of my work as a law clerk involves doing what I have already done for 5 years in law school — making ‘briefs’ of the case files which are listed for admission before Sir. Though the format of ‘briefs’ and whether a judge wants written or oral briefings differs from office to office, the contents of briefs are usually similar. They include the facts of the case, the case history from the trial court to the SC, and most importantly, the ‘grounds’ on which the case merits consideration by the Court. Apart from this, I also attend court and make briefs of arguments made during regular case hearings, and assist in preparing research notes for judgments and Sir’s public speaking engagements.
At the outset, I find it necessary to point out for the uninitiated that a clerkship is not strictly a ‘career’ as such. There is no scope for ‘promotion’ in a clerkship as there is in other jobs. Your pay and responsibilities remain the same irrespective of the number of years you spend in an office. Hence, people usually take it up as a short-term assignment. It is well known that out of these, most take up clerkships in the hopes of securing a recommendation letter that will help them pursue their Masters *cough cough*. However, a law clerk need not necessarily be someone looking for a stop-gap job whilst they apply for LL.M.s. It’s also a great opportunity for people looking for a break from the rigmarole of law firms/litigation, people who want to explore diverse areas of law before zeroing down on a particular field, or anyone who wants to see the ‘other side’ of how the Supreme Court functions.
It is important to bear in mind that the nature and volume of work differ from office to office. Some judges prefer long briefs; others want very concise notes. Some judges prefer not to delegate too much work to clerks. Even work timings vary largely. Some offices are as rigorous as Tier-1 law firms. I would strongly recommend that you intern with a judge or speak to a previous or current law clerk so that you know what kind of work will be expected of you, but more on that later.
What not to expect from a clerkship:
Let’s deal with the grey areas before the good areas. A lot of people who apply for a clerkship seem to be under the assumption that their work-load will consist entirely of Keshavnanda Bhartis and Navtej Johars. People, especially those who haven’t interned at the Supreme Court before, also bear the illusion that everyone who argues before the Court is a Seervai certified expert in constitutional law. If you have interned or worked at the Supreme Court, you would know that it is only a first among equals. The same problems of pendency, lawyers seeking adjournments on account of the fictional illness of some fictional relative which increases said pendency, frivolous litigation, bad lawyering, good lawyering to obfuscate an absolutely meritless case, etc., which one witnesses in other courts, exist at the SC.
Most importantly, you will not always be dealing with life-changing constitutional questions. In fact, what you will learn through clerking is that what we prioritise in law school debates is a very elitist conception of the actual legal problems which plague our population. We are trained to believe that we will be spending our life as Nani Palkhivalas and M.C. Setalvads, when actually your bread and butter is going to consist of demarcating the property boundaries of Raj Uncle’s Sector 16 flat and getting Simran Aunty her Provident Fund dues. At the SC, like in the lower courts, disputes are often won or lost on facts, and the sooner you understand that, the easier life as a clerk and as an advocate will be for you.
Additionally, as you may have figured out, a clerkship is mostly behind-the-scenes work. This is perhaps the reason why, unlike in the United States, clerkships are less-publicised and have relatively lower value in public perception as a career choice in India. A pet peeve of mine is that relatives, fellow members of the legal fraternity, and Tinder matches view clerking as a glorified internship. Things marginally improved when I acquired the hallowed SC ‘Proximity Card’. Even then, a common scene in the SC canteen is to have hapless clerks bullied into vacating their seats by ‘advocates’ or for a rebellious clerk to proudly flash their proxi-card and refuse to give up their seat. Ek chutki black gown aur white band ki keemat tum kya jaano, vakeel babu. (translation: one pinch of black gown and white band – how would you know its value, you lawyer *based on the famous dialogue from the iconic movie Om Shanti Om*)
Jokes apart, a clerkship should not be viewed as an easy ‘getaway’ job even though it involves a different set of tasks than those performed by litigating advocates and transactional lawyers. You are bound by the same, or perhaps a higher degree of confidentiality as you would be in a law firm or lawyer’s chambers. You are operating under constant deadlines to deliver briefs and notes, and there is no opportunity for seeking an adjournment or extension. There will be moments where you will have to brief the most frustrating and mind-numbingly boring/frivolous files. Most importantly, there is always going to be the pressure that if you don’t perform, you will be disappointing a constitutional functionary. Therefore, you are likely to encounter the same degree of challenges as you would in any other job. Just that everybody thinks you’re an intern, but you’ll get over it.
What you can take away from a clerkship:
A lot of people have asked me if working as a clerk helps if you are planning a career in litigation. In terms of hard skills, maybe not so much. You will be foregoing one year of seniority which you could have acquired in a law firm or chamber, and you will not be learning drafting work or court procedure such as filing, inspection, etc. However, you will definitely pick up a lot of soft skills in terms of understanding what kind of argumentative style can be persuasive to judges (hint: the number of juniors flanking you is not influential), in what cases they are likely to (or not) interfere with lower court judgments, etc.
Secondly, clerks are exposed to a wide diversity of matters. We go through law school patting ourselves on the back for knowing the difference between formal and substantive equality under Article 14 or being able to rattle off provisions of the IBC. However, as mentioned earlier, when you actually go through case files, you will figure out how much what we perceive as ‘mundane’ or small-fry topics in law school, make up the bulk of litigation. Inter alia, land acquisition claims, builder-buyer disputes, motor vehicle accidents, labour disputes and insurance claims are more likely to occupy your time and headspace than fundamental rights jurisprudence. This is not to say that the academic work we do in law school is useless. Every now and then there will be some headlines-grabbing constitutional matter which will usually lead to you gasping for breath and basically not hearing anything as 20-odd clerks fight for precious courtroom space with you (fellow clerks will guess what I’m talking about). However, our prioritisation of what legal issues merit discussion is configured from a privileged space and often does not account for what ordinary litigants actually care about, so it’s good to get that reality check. It’s also fun researching on a wide variety of topics, especially special legislations, which you were hitherto unexposed to (If anyone ever wants legal advice on mutawallis, you can approach me).
A clerkship is also really useful for learning statutory interpretation, and how important it is to the legal profession. Irrespective of your CGPA or University Round Rank in law school, if you can’t tell your ejusdem generis from your noscitur a sociis, you aren’t really a legal scholar yet. A lot of times, a case turns on how to interpret one ambiguous word in some archaic rule more than the application of some mind-boggling legal theory.
The most important take away from clerking for me personally is that it helps you become vastly more open-minded and practical about how the law and legal adjudication works. As a clerk, you will often be required to put your personal biases aside while conducting research. This might prove a difficult task, given that most of us are prone to inhabiting ideological echo chambers. You are either conservative or liberal. Feminist or MRA. Lover or hater of the green fries at joint mess dinners. And so on and so forth. Of course, as law students we are also trained to play the devil’s advocate, look at the grey side, employ post-modernism, etc. but we vastly tend to frame our judgements of right and wrong in terms of some ideological paradigm. There is a tendency to think that in any legal dispute, there has to be a ‘good’ side and a ‘bad’ side and as a lawyer, it’s your duty to help the ‘good’ side (from your ideological perspective) win. However, when you assist a judge, you learn that the factors that influence the adjudication of a dispute are vastly more complex. Sometimes the facts say one thing, but a badly-drafted statute might say something else. Sometimes the law is on one party’s side, but the facts favour another. Doing justice in one case would set a slippery precedent for future cases.
Those who have studied feminist jurisprudence or feminist legal methods under Prof. Elizabeth may have come across a term called ‘positionality’. Positionality requires that you should be willing to critically examine your worldview and consider those of others, without necessarily compromising or surrendering your principles to them. I think a clerkship is the best way to understand positionality as a method of thinking in practice. This works both ways — being a clerk also gives you the opportunity to put your perspective across to judges and share the outlook of the current generation of lawyers with them. Contrary to what you might think, they are often more than willing to engage with opposing/novel ideas and appreciate it if you take initiative in bringing the latest legal debates or academic developments to their notice.
Applying for a clerkship.
Now to the part you all are really interested in — how do you get a clerkship? There are two ways of going about it. The first is to apply through the SC Registry, in which case you will have to give an exam and an interview. If you are selected in this, the Registry itself will assign you to a judge. The second is to send a personal application to the office of the particular judge(s) you wish to clerk with, which usually consists of a cover letter, CV, and a writing sample. For obvious reasons, the second method is more popular.
There is no uniform set of criteria that can determine your chances of getting a clerkship. Every office has their own preferences and requirements for clerks, depending upon the nature of work involved. The best way to go about applying, in my opinion, is to intern with a judge beforehand so that they have the opportunity to observe your work and evaluate your application accordingly. I personally did not have the foresight to do so, but from experience, I can say that many judges prefer persons who’ve interned with them previously. The second option is to take advantage of good old NLS nepotism and speak to alumni who are already clerking so that they guide you in the application process. Even if you don’t know any alumni, it is desirable that you generally speak to someone clerking at a particular office so that you have a realistic picture of what their judge expects from prospective applicants. Most offices finalise recruitment around March/April, so you should start laying the groundwork at the beginning of your final year of law school.
The biggest mistake that people make when applying for clerkships is that they base their expectations of the kind of work they will be doing and their interactions with the judge they will be clerking with based on what is reported in the media. Merely because a particular judge is hearing a high profile case or a case in your favourite area of law at the moment does not mean they will be hearing those kinds of cases on a daily basis. It is also important to keep in mind that there are no specialised ‘benches’ which exclusively deal with the death penalty, IPR, tax, etc. It is true that certain judges tend to deal more with ‘commercial’ or ‘social welfare’ matters etc. based on their area of expertise, but the most accurate way of gauging what matters a judge actually hears is the Judges’ Roster on the Supreme Court website. It is recommended that you check the Roster before applying, because that is going to be 99% of the subject matter of the work you do, irrespective of what you may know through hearsay.
Similarly, people often tend to presume that they know everything about a judge based on what they’ve read off Bar&Bench or social media. They may have their subjective reasons for the same, which are perfectly valid. However, the facets of a judge you get to see while working in their chambers is often in stark contrast to how you see them in court (which is something you’ll get to know after speaking to clerks). In my opinion, the most important part of a clerkship is not about deriving validation for having worked with an SC judge or having attended the hearings of a landmark case. These are experiences which can also be replicated with a Senior Advocate. It is mostly about what you can take away from your personal interaction with a judge. Your most important lessons during a clerkship are not going to be from the research you do for a judge, but from the little nuggets of wisdom they drop while discussing a case or recounting personal anecdotes. It’s not just that they know the law better than you; they also know a great deal more about life than you do. Therefore, don’t clerk merely because you want to put ‘Besties with XYZ judge’ on your CV/Insta or because you see yourself being part of some revolutionary judgement. Be sure before applying that you genuinely want to learn from the person you are applying to.
Sorry, this got a tad too long. ‘Briefly’ speaking about my own experience, I have genuinely had a great time in the past year (which is evident in the fact that I’m continuing). To be honest, there were moments of FOMO in the beginning when I wondered if I was following the right life trajectory and if I should have taken up a law firm job instead. However, ultimately I don’t have any regrets. For those concerned about financial planning, you won’t be rolling in money of course, but a clerkship pays enough to live reasonably in Delhi (unless you spend all your money on tandoori momos and Big Chill like a certain someone who is not me).
Of course, if you are absolutely sure that your goal in life is to become a Senior Advocate or become an equity partner, then I suppose there is no point in doing a clerkship. The reason why the clerkship worked for me was because I don’t come from a legal background and my litigation internships during law school had been quite shitty. I hadn’t even interned at the SC before. Doing a clerkship helped me get a reality check about how the Supreme Court actually functions. So for those who want to test the waters before plunging into the Dark Sea of litigation, a clerkship is a good preliminary option. A clerkship is also a great option for people who prefer a career in academia or policy to hone their research skills. To sum up: great research opportunities, good opportunity to observe a mix of both ordinary lit matters and high stakes constitutional drama, and a daily dose of Lutyens sightseeing (the India Gate circle panorama is going to be imprinted in my brain for the rest of my life).
That’s it from me folks. If you have any other queries, feel free to PM. Stay safe, and remember to wash your hands, you detty pigs.
 Just in case someone is wondering, no reference is intended to a recent batch group discussion.