Chief Justice Burger in his address to the American College of Trial Lawyers in Columbia observed:
“In some jurisdictions, up to half of the lawyers who appear in court are so poorly trained in that they are not properly performing their job and that their manners, their professional performance and their professional ethics offend a great many people. They are engaging in on the job training at the expense of their clients’ interest and the public.”
Chief Justice Burger’s comment would hold equally good in the context of legal profession and its education in India. It is very general knowledge that a large part of the two lakh graduates being added every year to the existing ten lakh advocates in the country, are absentee law students who pass out from about 500 law colleges/schools. Such advocates ultimately learn, if at all, at the cost of the poor clients and court time. No wonder then that this, in turn, leads to the dispute resolution machinery to be seen as a villain by the society at large whereas this should be avoided as far as possible.
This unfortunate and disturbing situation demands that we ponder as to where the things have gone wrong. An effort has been made in this particular essay to identify the challenges the present legal education faces in India and also look into the means of arresting the falling standards so as to make it socially relevant.
Historical clock says:
The concept of dharma, in the Vedic period, can be seen as the concept of legal education in India. Although there is no record of a formal training in law, the dispensation of justice was to be done by the king on the basis of a self-acquired training. Justice was also administered by the king through his appointees who in turn were persons of known integrity and reputation of being fair and impartial. The guiding force for the king or his appointee was the upholding of dharma.
The institutions for formal legal education were introduced by British after the establishment of their rule in India. The first step in this direction was taken in 1857 when the three universities in the presidency towns of Calcutta, Madras and Bombay introduced legal education as a subject for teaching . This was followed by the setting up of a law college at Lahore after the establishment of PunjabUniversity. Thus, a beginning in the formal legal education grew stronger and showed its light in a part of the sub-continent.
At the initial stages, law courses were not full time. A student could take up law as a part-time course along with a full master’s course in social sciences or languages. There were hardly any standards or qualifications prescribed for the prospective law graduates. Though a beginning in imparting formal instructions in law leading to a degree was made with a limited number of law schools, the well offs in the society, however, would go to England to return as barristers.
Rule of law became the fundamental doctrine for governance of the country with adoption of the constitution in the post-Independence era. Consequently arose the need to streamline legal education in the country. During the decade of the fifties, law was introduced as a course (full time as well as part time) by a large number of institutions. In the absence of any rules for starting law courses and the qualifications for the faculty, the standard of the legal education went down during the infancy period itself. The decline was lamented by Dr. S.Radhakrishnan when he said:
“Our colleges of law do not hold a place of high esteem either at home or abroad, nor has law become an era of profound scholarship and enlightened research”.
The sorry state of affairs of legal education was echoed by the law commission in 1958. It observed :
“In the period of about ten years which has lapsed since the publication of the Radhakrishnan commission report, the position in regard to legal education in this country, it appears, has definitely deteriorated.”
The portals of our law teaching institution- manned by part-time teachers- open even wider and are accessible to any graduate of mediocre ability and indifferent merits. It is not surprising that in this chaotic state of affairs in a number of these institutions, there is hardly any pretence of teaching. This character is followed by law examinations held by the universities many of which are mere tests of memory and poor ones at that, which the students manage to pass by cramming short summaries published by enterprising publishers. The result, plethora of half baked lawyers who do not know even the elements of law and who are let loose upon society as drones and parasites in different parts of the country.
The Mushroom of Challenges:
In 1958, when the Law commission voiced its concern at the deterioration in legal education, there were hardly forty three institutions in the country preparing about twenty thousand students for the law examination. One notices a mushroom growth of law colleges in the sixties after enactment of the Advocates Act. This phenomenon continues unabated till date. The magnitude of mushrooming law colleges can be gauged from the fact that up till the early nineties, there were four law colleges in Bhopal whereas there are twenty two law colleges. Same is true about U.P. and Rajasthan in this region. These colleges work as money spinners and has put legal education at the back seat Admissions to these law schools are easy as the eligibility for admission is the minimum marks prescribed for the qualifying graduation examination. Thousands of students become eligible for admission and all of them get it. These sub-standard law schools have neither adequate buildings nor the qualified faculty in the required strength nor any library. Most of these institutions have part-time teachers with the exception of a few full time teachers. A student turns out a law graduate from such schools while sitting at home a few hundred miles away and without visiting the law school. These absentee law graduates play havoc with the clients and the court time after their enrollment as advocates. As of today, about 101 universities and about 500 law colleges are churning out two lakh law graduates every year. The first step to check the rot in legal education was to introduce the five year law course after the plus two level throughout the country. NationalLawSchool of IndiaUniversity, Bangalore is running exclusively a five year law course from the time it was set up in the year 1988 and along with it several other National Law Schools have come in various states of India. As a transitory measure, a three year programme is also allowed at various colleges and universities. Like other professional courses in engineering, medicine, commerce, architecture, etc. a student now decides his career in law at the turning point of plus two level. Introduction of a uniform five year law course would go a long way in improving the standard of legal education in the country. Still there remain some loopholes within the system.
Learning from the Critical Legal Studies and its application:
We should develop our first year courses into systematic embodiments of our views about the present and future organization of social life. In particular, we should teach the students that bourgeois or liberal legal thought is a form of mystification. The students should be taught to understand the contradictions of that thought, and the law teachers should make utopian proposals to them about how to overcome those contradictions.
The beginning should happen with a practical proposal. I think it’s different both in content and in spirit from the ones that liberal or vaguely progressive law professors typically put forward. For the last maybe fifteen years in the United States there has been an attempt to politicize the classroom. Politicizing the classroom means trying to teach basic contract, property and tort doctrine using cases and hypos that will perform three functions.
First, the cases and hypos have to be pedagogically useful just to get the students to learn black letter law. The teachers should have the major responsibility to teach doctrine, bar review type stuff. Though the students should have the right to criticize the professor for not doing enough and also question the questions. The need for cases and hypos that will perform this function while still working well to further the second objective, which is that cases and hypos should illustrate gaps, conflicts and ambiguities in the system of black letter law. The students should be made to see the pervasiveness of occasions for choice by judges when they are deciding what the rules should be. The third element, the politicizing element, depends on the first two. The cases and hypos that pose the problem of what to do with a gap, conflict or ambiguity in the system of doctrine should split the conservatives and the liberals in the class as close to right down the middle as possible. In other words, the students should find themselves evenly divided between two sharply contrasting yet possible rules to govern the fact.
Socio-Legal Research Perspective:
The level of research facilities available to a law teacher in India is not conducive to sustained research. The lack of role-facilities generates confusion, conflict as well as ambivalence towards primary role obligation calling for sustained attempts to contribute to knowledge in the field. A law teacher (unless he is a dean or Head of the University Department or a principle of a law college) gets no typing and duplicating assistance. Very few know how to type and of these not many can afford a typewriter. Availing the services of a professional typist remains for most of them a luxury. The role of Indian Council of Social Science Research can be very significant. Much of the current research effort has no relevance to contemporary social and national problems and suffers besides from lack of rigor in its analysis of phenomena and synthesis of facts. It is not yet emancipated from its tutelage of western theories and has failed to develop research tools, designs and models of its own appropriate to the Indian situation. Multi-disciplinary and inter-disciplinary research is yet rare. A most encouraging feature in the recent times has been that the concept of Indian law schools with focused research has made some profound and everlasting mark. The law community has actually acknowledged the same.
The legal education should be able to meet in the ever-growing demands of the society and should be thoroughly equipped to cater to the complexities of the different situations. Specialization in different branches of the law is necessary. The requirement is of such a great dimension that sizeable or vast number of dedicated persons should be properly trained in different branches of law every year by providing or tendering competent and proper legal education. This is possible only if adequate number of law colleges with proper infrastructure including expertise, law teachers and staff are established to deal with the situation in an appropriate manner. The area of deficiency should be located and correctives should be affected with the co-operation of competent persons before the matter gets beyond control. Reforms in legal education cannot wait any longer and that there can be no improvement in legal education unless we can convince the brilliant young people to accept teaching assignments in law. We need to produce a number of committed and dedicated teachers who in turn need to produce a new crop of hard working lawyers, honest judges and distinguished jurists. This is a tough and certainly a challenging task. As we all know, a teacher is a nation builder and only a committed and dedicated teacher can produce conscientious students, honest professionals, and informed citizens. This is what the nation in general and the legal profession in particular needs today.