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April 16, 2013

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The State Of Legal Education


- Dr. N.R. Madhava Menon, [ National Law School at Bangalore & Kolkata ]

Madhava Menon

Like every other institution in Indian society, higher education in general and legal education in particular, is in witnessing a process of far-reaching changes in organization, management, content and delivery.

The basic factor in this transformation is the constitutional mandate to build a social order based on democracy, human rights and rule of law securing to all its citizens Justice, Liberty, Equality and Dignity. On the basis of the recommendations of an expert committee, Parliament took steps as early as 1961 to enact the Indian Advocates Act integrating the legal profession throughout the country under uniform standards. It created duly elected Bar Councils at the State and Central levels with the authority to manage the profession including standards of legal education, of course, in consultation with universities teaching law. The first generation reforms in legal education followed soon thereafter which prevailed with minor changes till the beginning of 1980s.

This phase of legal education reforms included -

    1. LL.B. becoming a post-graduate (after a basic degree in Arts, Science, Commerce or Humanities) programme of three year's duration.
    2. Rapid expansion of law teaching institutions mainly in the private sector, many of them operating as part-time (few hours in the morning or evening in the premises of regular colleges) institutions and the bulk of teachers coming from the practicing profession giving lectures after or before court work.
    3. A core curriculum consisting of certain mandatory subjects came to be taught by all law colleges, fulltime as well as part-time colleges.
    4. To begin with, a compulsory one year post-LL.B. apprenticeship with a senior advocate was prescribed to become eligible for license to practice. This was dispensed with later.

Within two decades, access to legal education enlarged phenomenally, though the quality got diluted uncontrollably. Bar Council started inspecting and "licensing" law colleges. But it had only marginal impact on standards because of various reasons. The second generation reforms thus became imperative to maintain access with quality and consumer needs.

This was undertaken a decade before economic liberalization happened in the country in early 1990s. The strategy was to make LL.B. a post-higher secondary school course of a longer duration (5 years) with an expansive curriculum where students are led to study law in social context (through introduction of a range of law-related social science subjects) and employing multiple methods of teaching and evaluation.

The Five-Year Integrated LL.B. programme thus developed was prescribed by Bar Council to be the only BCIrecognized law course from 1982. Due to resistance from some sections of the Bar and some Universities, the Bar Council soon revised its own regulations and allowed both streams ( three - year postgraduate LL.B. and f ive -year post-higher secondary integrated LL.B.) to be run by colleges/ universities according to their choice.

Expansion of law colleges continued during the period enrolling annually about 200,000 students over 900 law teaching institutions in the country. Quality remained a casualty in many of these institutions which included university departments of law (roughly 150), Government managed/funded colleges of law (about 150) and the rest privately sponsored self-financing mostly part-time (evening) institutions.

Second Generation Reforms


In the above context, the Bar Council of India thought of a strategy of sponsoring a model law school with university status to act as a pace-setter for legal education reforms envisaged by its five-year integrated LL.B. curriculum. This initiative led to the birth of the first National Law School at Bangalore in 1986 which was supposed to become "the Harvard of the East", according to its sponsors.

India's entry into the WTO and its policies of economic liberalization in the 1990s brought about legislative changes in the new millennium not only in the economy but also in the regulatory framework of human resource development. As many as six pieces of legislation are now pending in Parliament which, if adopted, will radically change the higher education scenario in the country including legal education.

It is in this context, the Ministry of Law and Justice proposed what may be called the "third generation" reforms in legal education, according to which a variety of changes in the regulatory framework are contemplated along with more national law schools and additional government funding of few advanced centers for research and training in law. One may identify, inter alia, the following factors for the transformation of legal education in this period. These are offered not in any priority or importance and their impact has not been studied to be able to make any conclusive findings on the scheme of things.

(i)  The changing demands of the legal market at the national and global levels;
(ii) The establishment of new regulatory regimes in emerging areas of the economy;
(iii) Emergence of new technologies particularly in communication sector;
(iv) Growth of international trade and prospects of trade in services;
(v)  Advent of corporate culture in legal practice particularly in IPR matters;
(vi) The replication of Bangalore model of NLS in many more States;
(vii) The increasing demand for legal studies from among highly talented students;
(viii) The changes in the law education regulatory system - Common Law Admissions Test, All India Bar Examination; the Directorate of Legal Education in BCI;
(ix) Partnership of Bar, Bench and Academia in management of legal education at least in the NLS scheme;
(x)  Collaboration with foreign law schools and influence of foreign-educated lawyers;
(xi) Government willingness to finance law schools and improvement of faculty salaries;
(xii) Law firms resorting to campus recruitment and instituting awards for best performing teachers and law schools;
(xiii) Spread of legal publications, law reporting and legal awareness;
(xiv) The recommendations of the National Knowledge Commission (2005);
(xv) Law school involvement in legal aid, human rights and clinical and experiential education.

Three Decades of Reforms: Positive and Negative Outcomes


One might ask about the outcomes resulting from the influence of the above factors and the future direction of legal education in India given the level of economic development and globalization. Never since Independence, legal education received the attention it receives today from society, government and the private corporate sector. This has resulted in better infrastructure, greater private participation and increased investment, though yet inadequate for quality legal education. India today has the largest number of legal professionals (1.1 million) though all of them are not in legal practice in the conventional sense.

If solo practice has been the dominant fashion in the past, the trend today is more towards partnerships and large firms involving multiple areas of specialization. If the legal profession has been the monopoly of the male gender in the past, women are now-a-days joining legal practice in increasing numbers and are finding their places in the judiciary as well. The steady influx of people from the lower socio-economic strata to legal career is changing the composition of the profession and trends to strengthen democracy and rule of law in the country.

Legal practitioners are finding lucrative ways of practice outside courts and litigation compelling reforms in organization, management and delivery of legal services. On the negative side, one must mention the paucity of adequate number of competent teachers even in the best of law schools to guide the growing body of motivated students. There are vacant positions in every law school. Bright law graduates do not join post-graduate studies in Indian law schools nor are they attracted to teaching and research positions in them.

Many of them migrate to U.S. and U.K. law schools for LL.M. education and either not return to India or agree to take up teaching positions in India. This situation has led policy planners recently to think of restructuring post-graduate legal studies (LL.M. Degree is still a prerequisite for teaching position in law schools) making it a one-year programme geared to teaching, research and specialization. (The proposal is under consideration of the University Grants Commission which regulates P.G. programmes in law).

The Bar Association of India and Society of Indian Law Firms have come forward to address the shortage of teachers offering to send senior advocates to act as adjunct faculty in selected law schools which in a small way does help improve the situation. Some law schools have started recruiting teachers from outside India paying them attractive service conditions distinct from the rest.

Others are entering into exchange arrangements under which students and teachers are provided opportunities to learn in different environments under credit transfer arrangements. Everyone now realizes that unless the faculty position is improved, the future of legal education is bleak and students with financial capacities will migrate to other jurisdictions for their education.

Looking at the Future


One may speculate as to what might happen if the Bills pending in Parliament relating to higher education become law in the near future. Firstly, the Bill on National Commission on Higher Education and Research will restore university autonomy and allow experimentation and competition in individual institutions possibly resulting in academic excellence at least in few law schools.

Secondly, the Foreign Educational Service Providers' Bill may induce some world famous universities to set up their own campuses in India or enter into twinning arrangements compelling structural and functional changes in the delivery of education in other law teaching institutions. The National Accreditation Regulatory Authority Bill will tend to enforce minimum standards and help reduce mediocrity and exploitation while promoting the good institutions to constantly strive for academic excellence.

The establishment of a network of advanced centers of legal research and training as recommended by the National Knowledge Commission will help address the lack of quality research in existing law schools and promote a research culture in them. These are possibilities for the future which are contingent upon a variety of factors in the polity and the economy.

Before I conclude, I must refer to a complaint from the Bar and the Bench repeatedly made against the National Law Schools. It goes to the very fundamental objective of legal education in a developing country where the Constitution enjoins the legal system to facilitate eradication of poverty, inequalities in status and of opportunities and ensure justice to all in social, economic and political spheres. While attempting to meet the challenges of the market place and globalization, the focus of the curriculum at the National Law Schools is reportedly geared to the private corporate sector supplying trained graduates for corporate jobs, legal and managerial.

The original objectives of setting up National Law Schools were to supply welltrained lawyers to the trial and appellate Bar as well as for judicial service so that access to justice is enlarged and the quality of justice for the common man is improved and strengthened. This has not happened to any satisfactory level. Corporate opportunities have proved to be an attractive comfort zone for most law graduates. The profession also is increasingly getting corporatized in urban centers leaving the rural and poor litigants to a delivery system found inadequate in several respects.

The Corporate Bar seems to be demanding more and more bright graduates every year. Even the Government agencies are unable to secure high quality legal services commensurate to those fielded by the private corporate sector. In the profession also, this development has created some distortions in the distribution of work and income enlarging the inequalities creating problems in discipline and management. We understand that the corporate legal market in India today is worth over a billion dollars half of which is shared by foreign law firms.

The top 100 Indian companies have reportedly spent last year nearly 500 million dollars by way of legal fees. India's legal market is set to grow in a big way in the coming decade given the rate of growth the economy has achieved consistently over the last two decades. This is bound to impact the way the profession is organized and the way legal services are delivered. Who gets what and at what cost in this emerging scheme of things is not only a matter of concern to the professional membership but also to those in charge of ensuring the delivery of equal justice to all under a democratic Constitution.

 

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